(IJnnifU Ham irlynol iCibratg Cornell University Library KFP 210.A53M97 V 1 Corporations In Pennsylvania / 3 1924 024 705 422 Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924024705422 COEPOEATIONS IN PENNSTLVAlsTiA BY WALTER MURPHY ACTHOB OP " FABTNEB8HIP, ETC., IN PENNSYLVANIA' IN TWO VOLUMES VOL I. GENERAL ANB MUNICIPAL PHILADELPHIA REES WELSH AND COMPANY Law Publishers and Booksellers 19 S. NmTH Street 1891 Entered accordirg to the Act of CongreEs, in tbe year 1891, by KEES WELSH & CO. In the Office o( the Librarian of Congress, at Washington. PREFACE. This work is submitted to the legal profession of Penn- sylvania, with the hope that it may prove both useful and serviceable. Whilst not being a treatise, or what might be styled a text book on the subject of corporations, yet, it possesses all the qualities appertaining thereto, in- asmuch as it places before the practitioner all the decisions of the Courts of the State, which, in reality, declare and establish the law. , Intended, originally, to be an Index Digest based upon the same plan as Mr. Murphy's work on Partnership, Mr. Remak's on Negotiable Instruments, and Mr. Ballard's work on Equity (all exclusively Pennsylvania works), it was deemed advisable, after mature reflection, to add to the woxk at cmnprehensive and elaborate Index, emb€)dying in a condensed form the pith of all the decisions contained therein. It is unnecessary to explain or point out to the profession the value of such an Index, because it speaks for itself. It will be noticed that the different acts of Assembly upon the subject of corporations, upwards of 300 in number, and covering a period between 1713 and 1890, are chronologically arranged, and under that head will be found in brief, the construction placed upon the same by the courts. In the Appendix, will be found many important decisions made since the publication of the work was entered upon. Believing, that by it the legal profession will be benefitted, the work, with these few words, is sent upon its mission. Philadelphia, September, 1891. Cross references and figures in the Index indicate the volume and pages of the work,— e. g., under the head of "Damage" where the words " see Eminent Domain, I. 158 e«. aeq., occurs the figures refer to Vol. 1, p. 158, and not to Index. THE LAW OF CORPORATIONS PENNSYLVANIA, Of Corporate Property and Franclilses. I. THE FACT. II. THE RESULT. Of loeaiion of corporate works upon private property under the right of eminent domain, see Eminent Domain. Suspension of work of construction, see Subscription, Stock. I. Tlie Fact. Must be clearly proved. — Road from Great Bend, 1886 ; Q. S., Susque- hanna ; 2 C. C. E., 335. A public road cannot be laid out upon land over which a corporation has a right of way upon the ground of the company's mere non-user ; abandonment must be clearly shown. Sufficient evidence of,— Gnss v. West Chester E. Co., 1878 ; C. P.. Ches- ter ; 1 Chest. Co. , 363. Withdrawal from the use of property for corporate pur- poses, persisted in for many years, with no evidence of intention to resume it in the future, or motive to do so, is sufficient evidence of abandonment. Reasonable time allowed for adaptation to use. — Eoss v. Penna. B. Co., 1885 ; C. P. ; 42 L. Int., 16. A corporation which takes land under its power of eminent domain will not be held to have misapplied the land because it does not at once adapt it to, and employ it in, the operation of its works. It is entitled to a reasonable time within which to make such adaptation. Stockholders' consent. — Fredericks V. Pennsylvania Canal Co., 1882 ; C. P., Lycoming ; 40 L. Int., 24 ; 16 PhUa., 605 ; 33 Pitts. L. J., 117. A pro- vision in an act of Assembly that a corporate work may be abandoned by the approval and consent of two thirds of the stockholders held, in the absence of express words to the contrary, to mean the consent of the holders of two- thirds of the stock. Affirmed: 13 Outer., 50. May be ascertained in collateral proceeding. — Schuylkill Navigation Co. V Pottsville & Mahanoy E. Co., 1884 ; C. P., Schuylkill ; 41 L. Int., 264. Determining the question of a corporation's abandonment of its location, in a contest between it and another corporation seeking to appropriate the same property tor the corporate purposes of the latter- is not forfeiting the franchisea of a corporation in a collateral proceeding. 2 ABANDONMENT. C^"*^ -'• II. Xbe Result. Land opened to other appropriation.-Schnylkill Navigation Co «. Pottsville & Mahanoy R. Co., 1884; C. P., Schuylkill; 41 L. Int., 264 Land of a corporation which it has abandoned for its corporate purposes may be appropriated under the right of eminent domain by another corporation for itbe corporate purposes of the latter. Liability Of subseqnently appropriating company .—Clay&Hinkletown Turnpike Co. , 1884 ; Q. S. , Lancaster ; 1 Lane. Law Eev. ,361. Where prop- erty has been so abandoned and is afterward appropriated by a second com- pany under the right of eminent domain, the second company is not under any of the obligations, with respect to such property, imposed upon the first by its charter. Such an obligation could be enforced only against the original company or a paVty succeeding to its corporate rights and liabilities by a sale or lease of its works. Contract of subscription.— McCuUy v. Pittsbg. & Connellsville Railroad Co., 1858 ; 8 C, 25. If the undertaking for which a corporation is formed be abandoned, and some of the subscribers released, no action can be maintained against the other subscribers upon their contracts of subscription ; although, if a subscriber should consent to such refonding of subscriptions and to delay in commencing the undertaking, as matters of corporate policy, which should not affect his liability as a subscriber, he would be estopped from setting up these matters as defence. — See also Pitts. & Connellsv. R. Co. v. Graham, 1859 ; 12 C, 77. Non-repair of abandoned works.— Abandoning company's liabil- ity. — Fredericks v. Peuna. Canal Co., 1883 ; C. P., Lycoming ; 40 L. Int., S4 ; 16 Phila., 605 ; 33 Pitts. L. J., 117. A corporation which has lawfully abandoned its works cannot be held liable for damages resulting from the non-repair of the latter by reason of having made certain repairs subsequently to such abandonment ; it cannot either assume the control or incur the liar bilities which existed before abandonment. AfBrmed : 13 Outer., 50. No damages recoverable for appropriation- — Potter v. Pittsburgh Southern E. Co., 1886 ; 43 L. Int., 298 ; 33 Pitts. L. J. 289 ; 17 W. N. C, 40. On a sci. fa. q. e. n. upon a judgment obtained against a corporation for damages in taking the plaintiff's land, an afiidavit of defence alleging that the defendants are the successors, by purchase at judicial sale, of the company against which the judgment was obtained, and that they haid aban- doned tie proposed right of way and never taken or in any manner interfered with the plaintiff's land, is sufficient. Reversion of abandoned land.— Union Canal Co. , ». Toung, 1836 ; 1 Wh. , 410. Land conveyed, upon sufficient consideration, to a corporation in the mere expectation that the proposed work will be located upon it is not held in base fee, to revert to the grantor upon the abandonment of the projected work. Same— Land conveyed to Common-wealth for public works— Reser- vation in grant.— Robinson «. West Pennsylvania R. Co., 1872; 22 Sm., 316. Where an owner conveyed land to the Commonwealth for the construc- tion of the public works, excepting therefrom the land which should be used for a particular part of the works, and the Commonwealth used a part of the owner's land for such purpose, held that the exception did not subject the land to the specified servitude and entitle the holder to its reversion upon its abandonment for that purpose, but that the Commonwealth's interest in the excepted portion, as well as in the rest, was an absolute estate in per- petuity, and could not be defeated by the owner's neglect or refusal to make the application for an assessment of damages to which he was entitled. Haldeman v. Pennsylvania Railroad, 1865 ; 14 Wr., 425. Land taken by the State for the State works vested in the Commonwealth in fee and upon abandonment of the works did not revert to the ovmers. See also Craig v. Allegheny, 1866; 3 Sm., 477; Robinson v. West Penna. R. Co 1872- 22 Sm., 316 ; Wyoming Coal Co. v. Price, 1876 ; 31 Sm., 156. ' Part /.] ABATEMENT. 3 I. OF ACTIONS : GENERALLY, BY DISSOLUTION, ETC. IL THE PLEA. I. Of Actions: Generally, toy Dissolution, etc. The general rule as to dissolution.— Bailding Associations. Long, 1875; C. P. ; 1 W. N. C, 391. No suit can be brought in the name of a corporation after it is dissolved. See also Building Association v. Anderson, 1868 ; C. P. ; 7 Phila., 106 ; 25 L. Int., 237 ; Cooper v. Loan Assn., 1882 : 4 Outer., 402 ; Shamokin Valley &c. R. Co. uMalone, 1877 ; 4 Nor., 25. Attaclunent.— Hays v. Lycoming Ins. Co., 1882 ; 3 Out., 621. Where judgment is obtained and an attachment thereon issued and served against an existing corporation, the action against the garnishee does not abate by the dissolution of the corporation. Consolidation of corporations. — Baltimore & Susquehanna Railroad Co. V. Musselman, 1856 ; 2 Gr., 348. The consolidation of a defendant cor- poration with other corporations under a law which provided for a continu- ance of all its liabilities, is not such a dissolution of &ie corporation as will abate an action pending at the time of the dissolution. It seems such would not be the effect of a mere voluntary consolidation of the corporations, with- out any such provision in the act providing therefor. Preservation of creditors' rights. — Credit Mobilier, in re Dissolution of, 1873 ; 10 Phila., 2 ; 30 L. Int., 44. Although the dissolution of a corpo- ration pending suit against it technically causes an abatement thereof, it aeems that the assets of a defunct corporation still constitute a, trust ftind for its creditors and that a court of equity will lay hold of the fund and see that it be duly applied. But the rights of creditors, under the Act of April 9, 1856 (P. L., 293)j to make claim upon the funds of the dissolved corporation in the hands of the trustees therein mentioned is not entirely free from doubt. Separate suits by creditors and by corporation to use of assignee.— Penn Bank v. Hopkins, 1886 ; 1 Am., 328. Where the creditors of an insol- vent corporation have brought a bill inequity against the directors for negli- gence and mismanagement, a subsequent suit for the same cause brought in the name of the coirporation to the use of its assignee will be abated. Action against extinct corporations. — Reifler v. Honesdale & Dela- ware Plank Road Co., 1885; C. P., Wayne; IC. C. R.. 64. A corporation's existence is extinguished by a sherift's sale of its rights and franchises under the Act of April 7, 1870, and no action can be maintained against it there- after. Whether, where a writ is served on the former treasurer of such an extinct corporation, the proper form of procedure is for the party served to take a rule on the plaintiff to show cause why the vnrit should not be abated dubitatur. II. Xlie Plea. Want of incorporation. — Rheem v. Naugatuck Wheel Co., 1859 ; 9 C, 358. In a suit by a corporation the plaintiff is not bound to prove its in- corporation where the plea is the general issue. Want of incorporation must be pleaded in abatement, or in bar specially. See also Fullers). Eaton, 1880; 38 L. Int., 278; Fritz t>. The Commissioners, 1851 ; 5 H., 130. Nul tiel corporation. — ^Northumberland County Bank v. Eyer, 1869, 10 Sm., 436. The plea of mil tiel corporation is a plea in bar, and not a plea in abatement. Perth Amboy Steamboat Co. v. Parker, 1856, C. P., 2 Phila., 67. In an action against a corporation upon a judgment, a plea that no such corpor- 4 ABATEMENT.— ACCEPTANCE AND ASSENT. [Port X ation exists is bad, even if it be intended to show that t^e «>'TOT**i°° J"? dissolved after a judgment was rendered. Such fact should have been stated in terms. Misnomer.— Gray «. Monongahela Navigation Co., 1841, 2 W. & S 156. The misnomer of a corporation plaintiff must be taken advantage of by a plea in abatement. ABUSE. Of corporate franchises and primlegeg, see Forfeiture, Powers of Corporations, Negligence. Bill to restrain, see Injunction. ABUTXING PROPERXV. See Eminent Domain. ACADEmv OF mvsic 0/ Philadelphia, see Stockholders, Injunction. ACCEPXA?(CE A.^U ASSE9IX. I. ACCEPTANCE OF CHARTER OR OF AMENDMENT THERETO AS A CORPORATE ACT. II. ASSENT OF CORPORATORS AND DIRECTORS TO CORPORATE ACTS, in. ACCEPTANCE OF BILL OF EXCHANGE. IV. MISCELLANEOUS. Acceptance of charter hy subscribers to stock, see Subscription. Aceeptawice by corporation of provisions of new State Constitution, and additional powers and privileges after passage of Constitutional Amendment of 1857, effect of, see Constitutional Law, Eminent Domain. Acceptance of contract, see Contract, Powers of Corporations, Creation of Corpora- tions, Agency, Estoppel. Of specific sum o.s damages for corporation's entry, see Eminent Domain. I. Acceptance of Cbarter or Amendment tliereto as a Corporate Act. Power to make, or apply for amendments, see Amendment. Formal acceptance, when unnecessary.— Rathbone v. Tioga Naviga- tion Co., 1841, 2 W. & S. 74. Where letters patent have been granted at the special request of the corporators themselves, according to a special act of Assembly passed in that behalf, a formal acceptance of the charter is un- necessary. Part /.] ACCEPTANCE AND ASSENT. 5 How properly given.— Shortz v. TJnangst, 1841, 3 W. & S. 45. Accept- ance of a charter cannot be properly obtained by carrying the charter around and procuring privately the signatures of the members of the association for which it is proposed; such a charter is not binding upon those who do not sign it. Assent should be expressed in the associate capacity at a meeting duly convened after notice to all the members. See also Comm. v. Cnllen, 1 H., 132. Evidence. — Hochreiter's Appeal, 1880, 12 Nor., 479. What is sufficient evidence of the adoption of a charter hj an unincorporated association, without a formal entry of its adoption in the minutes. Corporate seal not conclusive.— St. Mary's Church, 1822, 7 S. & E., 516. A proposal for the alteration of a charter is not necessarily to be con- sidered the act of the corporation, because it is under the corporate seal ; the court may inquire by what authority it was affixed. Implied acceptance.— Mutual Fire Ins. Co. V. Stokes, 1872, 9 Phila., 80 ; 29 L. Int., 100. A corporation cannot legally come into existence unless its charter has been accepted. But^t is not necessary that the acceptance should have been by a written instrument, nor even by a formal vote. An accep- tance by directors, acquiesced in by the stockholders, by an approval of the expenditure of money in obtaining the charter, is sufficient. Hummel v. Lycoming Ins. Co., 1875, 1 W. N. C, 259. A supplement to a charter formally accepted by only the directors of the corporation may be validly accepted by the corporators by acting for a long period upon the powers therein given. See also Robinson's Appeal, 1875, 2 W. N. C, 150; Lycoming Ins. Co. v. Buck, 1872; C. P. SchuylkUl; 1 Luz. L. Reg., 351; 1 Leg. Chron. R., 257; Fell V. McHeniy, 1862; 6 Wr., 41. Same — Penna. R. Co. — Pennsylvania E. Co. v. Duncan, 1886; 1 Am., 352. The purchase of the State's Main Line by the Pennsylvania Railroad Com- pany was an acceptance by that Company of a new charter at that time. As to the result of such acceptance see s. c, Constitutional Law, Eminent Domain. Same— What does not constitue.— Comm. ■». CuUen, 1850, H., 132. Where the directors of a corporation have assumed to adopt an amendment to the charter without submitting it formally to the consideration of the cor- porators, the mere non-action of the latter for a period of two months after the official notification of such amendment, and a failure to elect trustees under the provisions of the charter as unmodified by the amendment, do not constitute an implied acceptance, nor does the election of corporate officers in pursuance of the amendment where there is a remonstrance by members against such election on the ground of non-acceptance. See also, as to election under new mode, Hunsicker v. Turnpike Co. ; 1 Montgom. Co., 41, infra. Assent of three-fourths of stockholders.— Comm. v. Pittsburgh Forge & Iron Co., 1870, C. P. Dauphin, 2 Pear., 374. Where an act of Assembly confers certain privileges upon a corporation provided three-fourths of the stockholders assent, three-fourths of the whole number of stockholders must assent. Almost unanimous assent at a meeting of less than that number is not sufficient. Denial of acceptance — Stock vote. — Mercantile Library Co., 1868, C. p.; 2 Brewst.. 447. Where it is denied that a proposed amendment to the charter of a corporation has been adopted by the stockholders, the court, before approving it, will order a stock vote to be taken. Optional privilege must be acted on.— Girard College Ewy. Co. v. I3th & 15th Sts. Rwy. Co., 1870; 27 L. Int., 398. A grant of a privilege of op- tionally extending a franchise will be treated as revoked when the option is not acted on for eleven years. 6 ACCEPTANCE AND ASSENT. [^PaH I. Acceptance of provisions of New Constitution-Acceptance by directors-Ratification.-Baker v. Academy of Music C p. 1884 14 W^ N. C, 560, 41 L. Int., 252. Any procedure which would he proper as an acceptance of an amendment to the constitution of a corporation may be val- idly used as the method of accepting or ratifying the acceptance ot the pro- visions of the new State Constitution. Although the Act of April 17, 1876 (P. L., 33) provides that such acceptance shall be "duly authorized by a meeting of the stockholdera called for that purpose," yet where a charter provides that "at each annual meeting of the stockholders, the directors of the preceding year shall submit to the meeting a full and fair statement of the affairs and proceedings of the said corporation for such year,' the act of the directors in passing, during such preceding year, a resolution accepting the provisions of the New Constitution may be validly ratified by the stock- holders at such annual meeting without special notice that such ratification is to be then proposed. Reversed, 13 Outer., 461, on the ground that the directors had no authority to accept the provisions of the Constitution of 1874, the Act of May 22, 1878, authorizing such acceptance by directors, applying only to charitable corpo- rations having no stockholders, and that in the case of corporations for profit such acceptance can be made only in the method provided by the act of April 17, 1876. Same — ^Implied acceptance. — Hunsicker v. Perkiomen & Sumneytown Turnpike Co., 1884, C. P. Montgomery, 1 Montgom. Co., 41. Although a corporation may bring itself within the operation of the new State Consti- tution by other action than the formal acceptance prescribed by the Act of April 29, 1874, yet a mere departure, from the accustomed mode of voting, prescribed by the original charter, to that prescribed by a statute passed sub- sequently to the adoption of the Constitution. Implied acceptance of statute— Payment of taxes under, — Union Passenger Railway Co. v. Philadelphia, 1877, 2 Nor., 429. "Where a corpor- ation has several times paid without protest an increased tax. prescribed by a statute passed subsequently to its incorporation, it is a legal conclusion that the corporation has accepted such statute in order to obtain the benefits flowing from such acceptance, and it cannot thereafter refuse to pay the in- creased tax. Affirmed by U. S. Supreme Court: 8 W. N. C, 377. When not presumed. — Commonwealth V. Bank of The United States, 1841, 2 Ash., 349. An acceptance by a corporation of a law, upon non-com- pliance with the provisions of which a right to enforce a forfeiture of its charter is grounded, will not be presumed, in the proceedings against the corporation, from merely the supposed fact that the legislation was of a cliar- acter beneficial to the corporation. Non-acceptance as matter of defence— Evidence.— Shortz v. Unangst, 1841, 3 W. & S., 45. In an action in which the validity of a charter is material, and in which it is held that such charter is invalid as having failed to receive the assent of the society in its associate capacity, evidence to prove that it would have been accepted, by all the members, had not its contents been misrepresented, is not admissible. Non-acceptance, when immaterial.— Comm. v. Bonsall, 1838, 3 Wh, 559. Where the Legislature has expressly reserved to itself the power to alter the constitution of a corporation, the validity of such an alteration is not affected by the absence of the corporators' assent thereto. Part 1.1 ACCEPTANCB AND ASSENT. 7 II. Assent of Corporators and Directors to Corpo- rate Acts. To proceedings in expulsion, see Disfranchisement. Stockholder's right to refuse assent, see Stockholders, Preferred Stock, Consolidation. Must he given in corporate capacity at meeting.— Langolf v. Seiber- litch, 1851 ; C. P. ; 2 Parsons, 64. To make the consent of a majorily of the members of a corporation binding npou a dissenting minority, it must be given at a meeting called for the purpose of considering the question in dispute, and of which due notice has been given. This rule holds true not only as to the amendment of charters, but as to other corporate acts. Consent obtained by private canvassing among the corporators is not binding. But consent of a majority to acts not conformable to the charter are not binding in any case. See also Fisher v. Harrisbnrg Gas Co., 1857 ; 0. P., Dauphin ; 1 Pear, 118. Corporation books evidence of, — Union Canal Co. v. Lloyd, 1842 ; 4 W. & S. , 393. Corporation books are evidence in favor of the corporation against a third person to prove, by the record thereof in such books, the assent of a corporator, under whom the plaintiff claims, to an act of the corporation whereby a superior title was vested in it. Assent to transfer of entire stock, — Insurance Bank v. Bank of The United States, 1847; D. C; 4 Clark, 125; 7 P. L. J., 129. Where the stockholders of a corporation, or those about to become stockholders, agree to transfer the entire stock, the fact that the transfers were actually made does not in itself constitute such an adoption of the act by the corporation as will make the contract binding upon it, since it would have no right to refuse to permit the transfer.- To ultra vires act. — Grand Lodge of United Workmen v. Stepp, 1883 ; 3 Penny., 45. Assent by a member of a corporation to an ultra vires act of the corporation does not validate such an act nor estop him from taking ad- vantage of its invalidity. Of directors — Proper evidence. — Pittsbg. & Connellsville Railroad Co. V. Clarke, 1857 ; 5 C, 146. The proper evidence of the assent of a board of directors to a transfer of stock is a recorded resolution adopted when the board was in session ; parol evidence is admissible only when the minute of such resolution is lost or destroyed. Same— Presumption of knowledge. — Fisher v. Harrisburg Gas Co., 1857 ; C. P., Dauphin ; 1 Pear., 118. It is a prima facie presumption, that a director knows of a corporate act shown upon the minutes of the company ; but this presumption may be repelled by proof. Same — A question of law. — Insurance Bank v. Bank of The United States ; D. C. ; 4 Clark, 125 ; 7 P. L. J., 129. What acts are sufficient to con- stitute an adoption by a board of directors of a contract made by the stock- holders, is a question of laW. Failure to dissent— Presumption— Ultra vires- Watts' Appeal, 1875; 28 Sm., 370. Where directors act ultra vires, but with a bona fide intent of benefitting the corporation, a stockholder having knowledge thereof must dissent within a reasonable time or his assent will be presumed and he will not be permitted to compel the directors to account for losses or, expenditure Involved in such acts. To election of incompetent person to office— Quo warranto.— Miller V. McCutehen, 1851 ; C. P. ; 2 Parsons, 205. A corporator who does not know, and has no laeans of knowing, at the time when a corporate election takes place, that one who is elected is incompetent to exercise the office under the charter, will not be deemed to have concurred in it so as to preclude him 8 ACCEPTANCB AND ASSENT. [-P""^ ^• from being a relator in a quo warranto information. A party becoming a corporator subsequently to an election is not disqualified from iBqumng into the right by which officers, illegally chosen at such election, hold their othce. To corporation's purchase of its own stock.— Coleman i^ Columbia Oil Co., 1865 ; 1 Sm., 74. Where a corporation purchases a block of its own stock, and afterward, by resolution, divides the stock among the then stockholders pro rata, upon the basis of the shares then held by them respectively, a holder cannot, in a suit brought by him against the company to enforce a claim to a, pro rata upon the basis of the number of shares held by him at the time of the purchase, deny that the purchase in question was an exercise of a cor- porate franchise or was justifiable upon any principle of necessity.; if such a stockholder meant to disaffirm the purchase, he should have done so by in- junction to restrain it; by bringing such an action he afarms it, and as to him it is a valid corporate act. III. Acceptance of Bill of Exclianse. See further Bills and Notes. Payment of suiseription in acceptances, see Sitbscription, Stock. By officer of corporation— Proof of, on trial. — Batt v. Pennsylvania Globe Gas Light Co., 1886 ; C. P. ; 43 L. Int., 86. An acceptance by the treasurer of a corporation in his official capacity is within a rule of court providing that in any action upon a bill it shall not be necessary for a plaint- iff who has filed a copy, ete., to prove on the trial the acceptance unless the defendant by affidavit, etc. , has denied the latter. The plaintiff is not bound to prove the treasurer's authority to accept unless the defendant has by affi- davit denied it. Same— Affidavit of defence— Presumption. — Montour Iron Co. v. Cole- man, 1856; 7 C, 80. In an action against a corporation upon a bill of ex- change drawn upon, and accepted by "A. B., President of," ete., the cor- poration is bound to put in an affidavit of defence. The record in such a case raises a necessary implication that the corporation is the real promissor. IV. miscellaneous. Officer's acceptance of note as ertinguisMng debt.— Dougherty v. Hunter, 1867 ; 4 Sm., 380. Where the president of a corporation customarily acts as its business agent with its knowledge and without objection, making sales, settling accounts and collecting debts, and actual authority so to do may therefore be inferred, the corporation will be bound by the president's acceptance in extinguishment of a debt due the corporation of a note made payable to the president in his individual name, without official designation, where the proceeds of the note go to the credit of the company. By transferee of stock.— West Philadelphia Canal Co. v. Innes, 1837; 3 Wh., 198. Where a regular assignment of stock has been made upon the books of a corporation, and in the presence of the proper officer, as pre- scribed by the charter, in pursuance of a previous agreement of the parties, no formal acceptance by the transferee is necessary; the latter cannot relieve himself from the obligations of a stockholder by failing to call for bis certifi- cate. By subscriber, to articles of association.— Bucher «. Dillsburg, &c. Bailroad Co., 1874 ; 26 Sm., 306. Where a subscriber places his name upon a blank .piece of paper, upon the agreement that it should not be attached to the "heading," being the articles of association, until the latter had been submitted to him, the latter is not bound by his subscription if it is attached to the articles without his assent. Partl.'\ ACCEPTANCE AND ASSENT.— ACKNOWLEDGMENT. 9 Presumption of,— Contract rights of bondholder— Constitutional law.— GilfiUan u Union Canal Co., C. P., 1879 ; 7 W. N. C, 179 The obli- gation of a contract between a coi^oration and its bondholder is as much within the protection of the Federal Constitution as is that of any other contract. Legislation to the effect that a bondholder shall be presumed to have assented to a proposed modification of his rights, if within a certain time after such modification he does not dissent from it, is invalid. Acceptance of contract of subscription- Duty to disavow member- ship.— Pittsbg. V. Connellsville Railroad Co. v. Graham, 1859 ; 12 C, 77. A subscription to the stock of a corporation is an ordinary contract to sell and purchase, and affected by the incidents of such contracts. The subscriber does not become an integral part of the corporation so as to be affected by an implied assent to its acts, and is not estopped from pleading the statute of limitations to an action upon his subscription, by the fact that after six years from the making of the subscription, he silently stood by while large expenditures were being made in prosecuting the work of the corporation. McHose V. Wheeler, 1863; 9"Wr., 32. The charter is prima facie evidence that all the persons named therejn as corporators were such at the commence- ment. A i)erson so named therein, if he be not a member, must immediately disavow Ms membership upon learning that such a use has been made of his name. ACCESS XO BOOKS And records of corporations: corporator's right to, see Mandamus. ACCOMMODATION. See Bills and Notes, ACCOUNT. Eqaitdble, see Trusts, StoehftoMers, Officers, Directors, Laches. Of taxes due from corporations, see Taxation. ACCUMUL,ATEI> PROFITS. When principal and when income, see Stock, Principal and Income. " ACCRUED TAXES." See Taxation. ACKNOWlrEDGMENT. Of membership in corporation, see also Subscription. By corporation— What sufacient— Seal.— Gordon ?). Preston, 1833, 1 Wts. 385. Where the seal of a corporation is not confined to the custody of any particular officer, it may be afaxed to a mortgage by the corporation by the corporators present as such, and an acknowledgment by such corpora- tors is a sufficient acknowledgment. 10 ACKNOWLBDGMKNT.— ACTION AND SUIT. LP<*^ ■'• Of signatures of subscribers tostock-Evidence.-Phila^W^Ct^ t«:Raii;oadCo.*.Hickman,1857,4C., 318. Where a partysubscnbes to stock on condition that others subscribe, it is implied in the contract that the conditional subscriber shall be charged by any evidence which wouW be sufficient to charge the others in actions brought aga™t them on their sub- scriptions. The Scknowledgment of their signatures, although after action brought, is therefore sufficient. ACfilTIXXAI-. Of corporator, see Disfranchisement. ACT OF ASSEMBI^V. See Statutes. ACTION AND SUIT. I. THE COMMENCEMENT OF ACTIONS AND APPEAEANCE. II. WHEN AND FOR WHAT MAINTAINABLE : FORMS, ETC. 1. What Actions and Suits may be Maintained by ob against COKPOBATIONS : IN GENEKAL. 2. Statutory Remedies : The Exclusion of Other Remedies : When Other Remedies will Lib etc. a. Remedies for the taking of property under the right of eminent domain : consequential damages eto. b. Other statutory remedies. 3. Suits for Negligence, Mismanagement oe Fraud of Directors. 4. Suits Relating to the Issue and Transfer of Stock. 5. By Holders of Corporate Bonds. 6. Miscellaneous. III. BY AND AGAINST WHOM MAINTAINABLE: PARTIES ETC. 1. Capacity to be a Party as a Corporation. 2. In Suits for Negligence, Mismanagement or Fraud of Di- rectors. 3. In Suits Growing out of the Contract of Subscription. 4. As Affected by the Transfer of Stock. 5. In Suits Arising from Corporation's Entry on Land. 6. In Suits during Sequestration. 7. Agents and Servants of Corporations. 8. Assignees and Trustees. 9. Receivers. 10. Miscellaneous. IV. ABATEMENT OF ACTIONS. Amendment, appeal, attachment, counsel fees; jurisdiction, limitations, pleading, practice, removal of causes, service, set-off, trial, see those several heads. Suits on official bonds, see Officers, Principal and Surety. Part Z] ACTION AND SUIT. 11 Bills far injunction, receiver, contribution and other editable remedies, see those several heads. Scire facias, see Mortgage, Scire Facias. Extraordinary remedies, see Mandamus, Quo Warranto. By or against foreign corporations, see Foreign Corporations. Suits by Commonwealth for forfeiture of charter, see Charter, Quo Warranto. Questioning of, or aMacJc upon corporate existence or powers in private action or suit, see Charter. Province of court and jury in, see T^ial. By one corporator against another, as ground for expulsion, see Disfranchisement. I. Commenceineiit of Actions and Appearance. President's power of attorney to commence suit. — Citizens' Bank v. Keim, 1875 ; 10 PMla., 311 ; 1 W. N. C, 263. Where a by-law of a bank provides that the president shall have under his supervision all debts which may remain due and unpaid, and recommend to the board of directors such proceedings as shall be requisite for their settlement, the power to institute and control proceedings for the collection of such debts is impliedly reserved to the directors, and the president cannot, on his own authority, give a power of attorney to commence suit. Appearance. — Swartwood v. Exeter, 1881 ; C. P. Wyoming ; 1 Kulp, 304; 10 Luz. Leg. Reg., 49. An appearance, to cure a defective service upon a corporation, must be by some one authorized to represent the corporation. II. "Wlien and for -wliat maintainable : Forms etc. 1. What Actions and Suits may be Maintained by or against Cor- porations: In Gene^^al, As to statutory remedies etc., see II, 2, a; II, 2, b. Assumpsit. — ^North Whitehall Township v. South Whitehall Township, 1817, 3 S. & E., 116. Assumpsit lies against a corporation on an implied contract. See also Pittsburgh & Baltimore Coal Co. v. Allegheny Bank, 1877; 34 L. Int., 313 ; 25 Pitts. L. J., 18. Case— Tort.— Chestnut Hill Co. V. Eutter, 1818 ; 4 S. & E., 6. An action on the case lies against a corporation for a tort: overruling Breckbill v. Turn- pike Co., 3 Dall., 396. See also New York &c. Telegraph Co. i;. Dryburg, 1860, 11 C, 298. Covenant.— Farmers' &c. Turnpike Co. v. McCnllough, 1855, 1 C, 303. An action of covenant will lie against a corporation on a written agreement sealed with its common seal. Malicious prosecution. — Fenton v. Sewing Machine Co., 1874; D. C, 31 L. Int., 132; 9 Phila., 189. An action for malicious prosecution will lie against a corporation aggregate. The malicious prosecution is that of the corporation when it was originated and carried on by its chief officer in its behalf, with its knowledge, and for its benefit. No formal authorization of the prosecution is necessary to impose liability. 12 ACTION AND SUIT. [Part I. Slander. — Temperance Mutual Benefit Assn. v. Sehweinhard, 1887, C. P., i;el)ajion, 3 C. C. E., 353. A corporation may maintam a suit for slanderous words directed against its corporate business. Trover— Mesne profits.— McCready w. Guardians of The Poor, 1822, 9 S. & E., 94. Trover and trespass for mesne profits lie against a corporation. 3, Statutory Remedies : The Exclusion of Other Remedies : When Other Remedies will lAe etc. a. Remedies for the Talcing of Property under the Right of Em,i- nent Domain : Consequential l)am.ages etc. See farther Eminent Domain. Parties must endeavor to agree before resorting to statutory remedy — Breach of agreement. — Bertsch v. Lehigh Coal & Navigation Co. , 1833, 4 E., 129. Where a special remedy is provided by an act of Assembly for the recovery of damages for injuries done by a corporation to the land of private owners, it is to be resorted to only when the parties are unable to agree as to the amount of compensation which should be paid. Where an agreement has been entered into, fixing the amount of compensation and the specific land to be taken, the remedy for a breach thereof is by an action upon the agreement. But it the corporation disregard such agreement and ap- propriate land other than that specified, the owner may rescind the contract and pursue the statutory remedy. Provision for different remedies in charter and in supplement.— Knorr v. Germantown &c. Eailroad Co., 1839, 5 Wh., 256. Where by ita charter a corporation is made liable to an action for damages for the omission of a certain duty to the owner of land upon which its works are to be con- structed, in repairing an injury caused by such construction, and by a supple- ment to its charter, permitting a change of location, provision is made for the assessment by jury of damages occasioned by such change ; the injury made remediable by action under the original act is remediable only by the statutory method when it occurs after the passage of the supplement. Negligence in constructing corporate works. — Pittsburgh^ Fort Wayne & Chicago E. Co. v. Gilleland, 1867, 6 Sm., 445. A common law action may be brought against a corporation for unskilfulness or negligence in construct- ing its works, damage being thereby done to the plaintiff. Compensation for such injuries cannot be included in the assessment of damages for entering upon and taking the land. Negligence in maintaining corporate works.— Schuylkill Navigation Co. V. McDonough, 1859, 9 C, 73. The special provision in its charter for remedies for injuries arising from a corporation's construction of its works does not exclude the common law remedies for the corporation's abuse of its franchises or neglect of its duty to properly maintain such works. See also Penna. & Ohio Canal Co. v. Graham, 1869, 13 Sm., 290; Fehr v. Schuyl- kill Navigation Co., 1871, 19 Sm., 161. Entry before approval of bond for damages— Trespass.— Dimmick v. Brodhead, 1874, 25 Sm., 465, The entry upon land taken liy a private cor- poration under the right of eminent domain, before the approval of the bond for damages, is a trespass, for which an action will lie against the parties entering: affirming 6 Leg. Gaz., 138. See also Bethlehem South Gas & Water Co. v. Yoder, 1886, 2 Am., 136. Security given after unlawfiil entry.— Pennsylvania E. Co. v. Eby, 1884, 11 Outer., 166. The giving of security, after an unlawful entry, is not a bar to an owner's or tenant's proceeding in an action of trespass. See also Bethlehem South Gas & Water Co. v. Yoder, 1886, 2 Am., 136. Pari J.] ACTION AND SUIT. 13 Agreement after unlawful entry— Breach— Ejectment.— Phila*lel- phia, Newtown & New York E. Co. v. Cooper, 1884, 9 Outer., 239. Where land is taken by a corporation under the right of eminent domain without first paying or securing compensation to the owner, and the latter subse- quently agrees with the corporation to accept a specific sum for the right of way over his property, but such agreement is never fulfilled by the company by payment at the specified date, the owner may bring an action of eject- ment against the company, and the unexecuted agreement cannot be set up in defence. Ejectment pending certiorari in statutory proceedings.— Schnler v. Northern Liberties &c Railroad Co., 1838, 3 Wh., 555. An action of tres- pass cairuot be sustained against a corporation dming the pendency of a cer- tiorari to remove the proceedings for an assessment of damages for land taken for the construction of its works. After final award and payment of the amount thereof into court, the company is seized of the land, and the allow- ance of the writ of certiorari does not divest the seisin. Entry pending appeal— Failure to pay damages— Ejectment.— Lever- ing V. Philadelphia, Germautowto & Norristown Bailroad Co., 1844, 8 W. & S., 459. Where a corporation has entered upon land pending the owner's appeal from the award of viewers appointed under the provisions of the company's charter to assess his damages, the owner may recover the land in ejectment if the company do not pay the amount of the final judgment. Issue in trespass — ^Appeal. — Philadelphia, Germantown & Norristown Railroad Co. v. Smick, 1837, 2 Wh., 273. Upon an appeal from an award of viewers appointed in accordance with the charter of a corporation, the court may order an issue to be made up between the parties in an action of tres- pass quare clausum f regit. Trespass — Taking beyond authorized line.— White v. McKeesport, 1882, 30 Pitts. L. J., 233. The compensation provided for by the State Con- stitution for the taking of private property for public use cannot be recovered in an action of trespass quare claumm fregit brought against a municipality upon the supposition that the taking of the plaintift's land extended beyond the authorized line. Same — ^Refusal to submit to assessment. — Erie & Waterford Turnpike V. Cochran, 1807, C. P., Erie, 2 Hall's L. J., 88. A corporation may main- tain an action of trespass against a land-owner who refuses to submit to the statutory mode of assessing damages and obstructs the right of way across his land. Failure of execution for damages— State works— Ejectment. — North Branch Canal Co. v. Hireen, 1863, 8 Wr., 418. Where an owner ob- tained a judgment and verdict against a canal company for land taken by the State in the construction of the State Canal and purchased from the State by the defendant company, held that he could not, after the issue of execution upon such judgment and the return of Nulla lona, recover the land in ejectment. Injunction— Land-owner's laches— Ejectment.— Seal v. Northern Cent- ral. R. Co., 1868, C. P. Dauphin, 1 Pear., 547, 2 Leg. Gaz., 182. An in- junction will not be granted to restrain a corporation from continuing to use land taken by it without paying or securing compensation, especially where the use has been long-continued and the land-owner has been guilty of laches. The remedy is by ejectment. Insolvency of corporation— Equitable remedies.— Stump's Appeal, 1881, 38 L. Int. , 205, 13 Lane. B. , 93. The insolvency of a defendant corpor- ation is not sufficient to confer jurisdiction in equity to remedy an injury for which a special statutory remedy has been provided. Bill for apportionment of ground rent.— Voegtly v. Pittsburgh & Fort Wayne R. Co., 1859, 2 Gr., 243. The owner of a ground rent cannot main- tain against a corporation which has appropriated a part of the land out of 14 ACTION AND SUIT. [^<"^ ^• which the rent issues a hill to compel an apportionment of the rent and an extingnishment by the company of so much of the rent as is chargeable to the part appropriated. Such an owner retains unimpaired his remedy against the ground, and must exhaust that remedy in the first instance. Contract to purchase the land-Breach-Bjectment by she^s vendee— Stay.— Pittsburgh & Steubenville E. Co. v. Jones, 1868, 9 Sm., 433 Where specific performance of a corporation's contract to purchase land taken by it in the construction of its works is decreed, with leave to the vendor to issue execution upon the company's failure to comply with the decree; and upon such failure execution is so issued; the purchaser at the sheriff's sale under such execution may maintain ejectment for the land, and their title is subject to no easement by ttle company although the latter has laid its tracks on the land. But in aflarming a judgment for the plaintiff in sndi a case, a stay of pro- ceedings will be ordered for the purpose of giving the company an opportun- ity for an assessment of damages. The vendor's sale upon the judgment under the decree is a virtual recission of the contract. Injunction— Consequential damages.— Berlew ». Electric lUnmina^wii Co., 1886, C. P. Northumberland, 1 C. C. R., 651. Although an action on the case is the appropriate remedy for the recovery of consequential damages for injury already done to private property by a corporation's taking or injur- ing it under the right of eminent domain, U seems that the threatened inflic- tion of such injury without the previous payment or securing of compensation may be restrained by injunction. Consequential damages— Charter liability— Action.— White Deer Creek Improvement Co. v. Sassaman, 1871, 17 Sm., 415. Where the charter of a corporation provides no special remedy for certain classes of injuries re- sulting from the exercise of its franchises, and the stockholders are made personally liable for consequential damages, a common law action will lie. Same— Case lies.— Ritchie v. Pittsburgh & Lake Erie E. Co., 1884, C. P. Lawrence, 1 Lane. L. Rev., 213, 31 Pitts. L. J., 424. The proper remedy for consequential damage inflicted by the construction of corporate works is an a<^ion on the case, and not a statutory assessment of damages. See also Patent V. Philadelphia & Reading E. Co., 1884, C. P., 14 W. N. C, 545, 1 Lane. Law Eev., 217; Levering v. Phila., Germantown & Chestnut HiU E. Co., 1886, C. P. 18, W. N. C, 50. b. Other Statutory Remedies, Stock assessments— Act of 1874, — Eichboro' Dairymen's Assn. v. Cor- nell, 1884, C. P., Bucks, 2 Chest. Co., 293. A common law action will not lie to recover assessments laid upon stock under Section 12 of the Corporation Act of 1874, in the absence of an express promise to pay by the holder. The remedy is confined to a sale of the stock under clause 2, Section 39 of the Act. See also Richboro' Dairymen's Assn. v. Ryan, 1885, C. P., 42 L. Int., 268, 2 Chest. Co., 541, 33 Pitts. L. J., 36. Trespass for cutting timber— Act of Mar. 29, 1824. — Bethlehem South Gas & Water Co. v. Yoder, 1886, 2 Am., 136. The Timber Act of March 29, 1824, imposing double and treble damages for the willful catting of another's timber, does not apply to the cutting of timber upon land taken by a corpor- ation under the right of eminent domain, even where the corporation's entry is a technical trespass. Mining coal on another's land— Limited partnership. — Oak Eidge Coal Co. V. Eogers, 1884, 16 W. N. C, 355. A limited partnership associa- tion organized under the Act of June 2, 1874 is so far a "corporation" that it may be sued under the Act of May 8, 1876, for mining coal upon the lands of another. Part 1.1 ACTION AND SUIT. 15 Stockholders' personal liability under Act of 1874 for labor and materials— Creditors' bill for unpaid instalments.— Eunn's Appeal, 1884 9 Outer., 49. ,The personal liability to creditors of corporations created under the Act of 1874 for work or labor done or materials furnished, imposed by the 14th Section of that Act (P. L., 73) upon the stockholders of such cor- porations, does not preclude those furnishing labor or materials from enforc- ing their remedy as simply creditors of such corporations by the creditors' bill ordinarily maintainable upon a corporation's insolvency to enforce the collection of unpaid instalments upon the stock. Assignees of stock are liable in like manner as original subscribers. Sequestration— Attachment— Bill in equity— Funds due corpora- tion. — Suydam v. Ins. Co., 1865, 1 Sm. 394. Judgment creditors of an in- solvent corporation seeking to have funds belonging to the corporation, in the hands of natural persons made co-defende'nts -with the corporation, ap- plied to the payment of their judgment, cannot have their remedy by bill in equity; the statutory sequestration or attachment-execution (Acts of June 16, 1836 and Mar. 20, 1845) are, by force of the Act of 1806, exclusive of all other remedies. • 3. Suits for Negligence, Mismanagement or Fraud of Directors. Action to enforce individual liability— Proof of incorporation— Amendment.— Gardner V. Post, 1862, 7 Wr., 19. In an action to charge several individuals with a personal liability for acts done by them as directors and stockholders in an alleged corporation, the plaintiff must make proof of the charter of incorporation. An amendment to the declaration setting forth that the said company was never legally incorporated will not be allowed, since a new and distinct cause of action would be introduced thereby. Corporation plaintiff.— Simons v. Vulcan Oil Company, 1869, 11 Sm., 202. A fraud against a corporation by the directors may be redressed by an action against the directors in the name of the corporation : affirming 6 Phila,., 561, 25 L. Int., 156. Damages— Misappropriation of stock purchase.— Kimmel v. Stoner, 1851, 6 H. , 155. A stockholder may maintain an action for damages against the corporate officers for the appropriation by the latter to themselves of the benefit of a purchase of the company's stock, which was directed by resolu- tion of such officers to be made "for the use of the company." Form of proceeding.— Craig v. Gregg, 1876, 2 Nor., 19. The remedy of the stockholder must be in form to protect the Interests of the corporation as trustee for all its stockholders and creditors, not by separate action. See also McAleer v. McMurray, 1868, 8 Sm., 126. Equity — ^Injunction. — Langolf v. Sieberlitch, 1851, C. p., 2 Parsons, 64. The corporators may maintain a bill in equity for an injunction to restrain the directors or trustees from misapplying the corporate funds. See also Diller i). Bosenthal, 1877, C. P., Luzerne, 6 Luz. Leg. Reg., 33; Flynn v. Enterprise Building Assn., 1877, Id., 133; Watts' Appeal, 1875, 28 Sm., 370; Spering's Appeal, 1872, 21 Sm., 11. Bill by creditors — ^Demand on corporation; — Penn Bank v. Hopkins, 1886, 1 Am., 328. The creditors of an insolvent corporation may maintain a bill without previous demand upon the corporation to proceed and a re- fusal to do so. Dissolved corporation— Allegation of no indebtedness by,— McCarty's Appeal, 1885, 17 W. N. C, 182, 43 L. Int., 186, 33 Pitts. L. J., 454. The receiver of a dissolved corporation may maintain a bill in equity against its officers and directors to recover moneys of the corporation which they have wrongfully appropriated to themselves, notwithstanding an allegation in de- fence that the corporation owes no debts. The latter question is properly determined upon the distribution of the recovered fund. 16 ACTION AND SUIT. {_Part I. 4, Suits Relating to the Issue and Transfer of Stock. Eight to unsubscribed stock— Assumpsit.— Eeesei). The Bank, 1855, 7 C, 78. Unsubscribed stock belongs to the corporators, and must be disposed ot for the benefit of all. Where a resolution of the directors authorizes the issue of such stock to all the stockholders, one of the latter whose applica- tion is refused may maintain assumpsit against the directors. Same — Bemedy at law. — Miners' Bank v. Water Co., C. P. Schuylkill, 2 Schnylk. Leg. Eec, 16. Where there is no provision in the charter of a corporation as to how untaken stock shall be issued or sold, the company may lawfully sell the same at auction. Where there is no increase of the capital stock, but merely a disposal of the original untaken stock, those who are already stockholders have no paramount right to demand a distribution of the stock among themselve?. A stockholder claiming snch a right has, it seems, no standing in equity. If he has any remedy, it is by an action on the case. Same— Demand of right.— Wilson v. The Bank, 1857, 5 C, 537.— A stockholder who is entitled to subscribe to additional stock authorized to be issued cannot maintain an action against the corporation for a refusal to per- mit him to subscribe where he never demanded or offered to subscribe. Preferred stock— Dividends^Assumpsit.— West caiester & Phila. E. Co. V. Jackson, 1875 ; 27 Sm., 321. AasumpHt is the proper remedy for a cor- poration's breach of its contract with respect to the payment of dividends in issuing preferred stock. Stockholder's bill forre-delivery- Demandbycorporation.— 8haw v. Pennsylvania Canal Co., C. P., 1884, 41 L. Int., 165. A bUl to compel a re-delivery of a majority of the shares of the stock in a corporation, the con- sideration for which has tailed and the control of which by the transferee is used by the latter in detriment of the business of the transferor corporation, may be filed by the remaining stockholders oi the transferor coi-poration, vrithout a previous call by the complainants upon their corporation to make the demand for itself. Action for damages— Misappropriation of stock purchase. — Kimmel V. Stoner, 1851, 6 H., 155. A stockholder may maintain an action for dam- ages against the corporate oflacers for the appropriation by the latter to them- selves of the benefit of a purchase of the company's stock which was di- rected by resolution of such officers to be made "for the use of the com- pany." Corporation's refiisal to permit transfer— Mandamus— Case.— Bnr- mingham Fire Ins. Co. v. Comm., 1879, 11 Nor., 72. Mandamus will not lie to compel a transfer of stock; the proper remedy is an action on the case for damages. See also Presbyterian Congregation v. Carlisle Bank, 1847, 5 B., 345; Boyerj). Saving Fund, 1877, C. P., SchuylkUl, 1 Schnylk. Leg. Eec., 231; Jacobs u Telford &c. Turnpike Co., 1886, C. P., Montgomery, 2 Mont- gom. Co., 101. Same— Assumpsit— Recovery of dividends.— Morgan v. Bank of North America, 1822, 8 S. & E., 73. A special action of assumpsit lies for a re- fusal to permit a transfer of stock. Jacobs V. Telford &c. Turnpike Co., 1886, C. P., Montgomery, 2 Mont^ gom. Co., 101. The remedy for a refosal to permit or properly note upon the books of a corporation a transfer of stock is a special action on the case. The refusal is a tort, which may be waived and an action brought in aammp- sit only where the circumstances raise an implied contract. But aasvmpgit may be brought for the recovery of such dividends as were due at the date of the institution of the suit. When plaintiff must shovir consideration.— Littell v. Scranton Gas & Water Co. , 1862, 6 Wr. , 500. In an action for damages against a corporation Part /.] ACTION AND SUIT. 17 for a refusal to transfer stock which, before the demand for a transfer, has , been attached by the assignor's creditors and sold by the sheriff, the plain- tiff must show afBrmatively that the transfer to him was for a valuable con- sideration: afSrming 2 Luz. Leg. Obs., 82. When damages cannot be recovered— Corporation's false denial of plaintiff's ownerslup. — Jacobs u Telford &c. Turnpike Co., 1886, C. P., Montgomery, 2 Montgom. Co., 101. The ownership in stock of one to whom it has been assigned by an indorsement upon the certificates without any transfer, or note of the assignment, upon the books of the company, is not affected by the company's tort in stating, in answer to interrogatories in at- tachment against the assignor, that the stock was the property of the latter, though having notice of the assignment. Such an assignee may maintain an action against the corporation to recover dividends accruing during his own- ership. He cannot, therefore, recover damages for the refusal to permit a transfer unless it appears that he has thereby lost an advantageous sale. When equity will act. — Sank v. Steamship Co., 1864, 5 Phila., 499, 21 L. Int., 389. Equity has jurisdjction to compel a private corporation whose stocks are not upon the market and have no certain value to permit a trans- fer of the legal title thereto to the owner of the equitable title. There is no adequate remedy at law. 5. By Holders of Corporate Bonds. Holder's right to sue.— Fox- v. The Iron Co., 1860, D. C, 17 L. Int., 149. The bona fide purchaser for value of a coupon bond of a corpora- tion takes it with the right to sue in his own name, free from all equities which may have arisen against the previous holder and with no obligation to see that the money is applied to the purposes of the corporation. See also Caxr V. LeFevre, 1856, 3 C, 413. Same — Obligee named, or assigns.— Bunting v. Camden & Atlantic EaUroad Co., 1876, 31 Sm., 254. Corporation bonds payable to an obligee named, or his assigns, are not assignable under the act of 1715, so as to en- able the assignee to sue in his own name. Same— Overdue coupons and warrants— Interest.— Philadelphia & Beading Eailroad Co. v. Smith, 1884, 9 Out., 195. The holder of overdue interest coupons and interest warrants, whether attached to, or severed from bonds issued by corporations, payable to bearer, may maintain an action thereon against the corporation, and may recover interest on the amount of such coupons and warrants from the time when they became due and payable. See also Philadelphia & Reading Eailroad Co. v. Fidelity Trust Co., 1884, 9 Out., 216. Moody V. Philadelphia & Beading Baiboad Co., C. P., 1883, 13 W. N. C, 48, 40 L. Int., 170. When the interest coupons of corporate bonds are in .such form as to constitute distinct causes of action, interest may be recovered upon them in an action of debt upon the bonds after the latter are due, though the coupons have never been detached. Holder's right to sue instead of pursuing remedy provided in trust mortgage.— Montgomery County Agricultural Society v. Francis, 1883, 7 Out. , 378. An action will lie by a single holder of the bonds of a corporation for interest due upon his bonds notwithstanding that the trust mortgage securing the bond provides that in default of payment of such interest or the principal, the trustees shall, at the written request of holders of such bonds to an amount not less than a specified sum, proceed by scire facias to collect the interest and principal of said bonds for distribution i)ro rata. Such stipu- lation in the mortgage does not make the specified proceeding the only rem- edy. 2 — MUEPHY. 18 ACTION AND SUIT. [Part I. 6. Miscellaneous. Compensation of officers— Quantum meruit— Kilpatrick « Penrose Ferry Bridge Co. , 1865, 13 Wr. , 1 18. The compensation of corporate officers must, to support a recovery against the company, be fixed by express con- tract. There can be no recovery on a quantum meruit. Discovery in aid of execution.— Large v. Transportation Co., 1841, 2 Ash., 394. A plaintiff who had issued execution against a corporation was not obliged, upon the return of the execution in whole or in part unsatisfied, to proceed to sequestration. He could sue out successive executions until he was satisfied. And he might have a bill of discovery in aid of his execu- tion. See also Bevans v. Turnpike Co., 1849, 10 B., 174. Ultra vires purchase of land— Vendor's remedies.— Faulkner's Appeal, 1881, 11 W. N. C, 48. Where a corporation purchases land ultra vires, the recourse of the vendor for unpaid purchase money will be limited to the land. Money received to use of corporation— Void note^— Assumpsit.— Pittsburgh & Baltimore jCoal Co. v. Allegheny National Bank, 1877, 34 I . Int., 313, 25 Pitts. L. J., 18. Money received and used by a corporation upon the security of a note in the corporate name which is void by reason of want of authority in the of&cer who signed it, may be recovered from the corporation under the common counts. Tort — ^Negligence of employees. — New York &c. Telegraph Co. v. Dry- burg, 1860, 11 C., 298. A corporation may be sued in tort, in its corporate character, for damages arising from the neglect of its employees appointed without a seal. See also Penna. E. Co. v: Vandiver, 1862, 2 Wr., 365. Sealed contract by promoter— Parol acceptance by corporation— Assumpsit. — Swisshelm v. Swissvale Laundry Co., 1880, 37 L. Int., 514. A contract under seal to sell land was made between the owner and a mem- ber and agent of an association intending at the time to become a corporation and shortly afterward actually receiving its charter. The agent executed the contract as for himself alone, although the intention of all parties was that the purchase should be by and for the association. The corporation ac- cepted the contract in parol and entered into possession of the land. Held that the corporation was liable, in asgumpsit, for the stipulated price. Cause arising before incorporation. — ^Packer v. Sunbuiy & Erie Rail- road Co. , 1852, 7 H. , 211 . A corporation plaintiff is not barred from equitable relief on the ground that the alleged wrongs were committed before the issu- ing of letters patent to the plaintiff, where there was no tardiness in the organization of the company sufficient to forfeit its corporate rights. Same — Subscription.— Steamship Co. v. Murphy, 1867, D. C, 6 Phila., 224, 24 L. Int., 228. A subscription to the stock of a proposed corporation, may be sued upon by the corporation after it comes into exixtence. See also Edinboro' Academy v. Robinson, 1860, 1 Wr., 210; Shober v. Park Assn., 1871, 18 Sm., 429. Sci. fa. sur mortgage after dissolution.— Cooper v. Oriental Savings & Loan Association, . 1882, 4 Out., 402. Jt seems that, generally, when the charter of a corporation has expired, the corporation has no power to issue a scire facias sv/r mortgage. Action for taxes— Forfeiture of charter for non-payment. — Comm. V. Huntingdon Bank, 1831, 2 P. & W., 438. Where a tax is imposed upon the amount of dividends declared by a corporation, the penalty for the non- payment of which is forfeiture of the charter, the exaction of such forfeiture does not preclude the Commonwealth from recovering in an action the un- paid taxes. Creditors' bill to compel refimding of proceeds of corporate prop- erty.— Bickley V. Paul, 1875, C. P., 2 W. N. C, 301, 11 Phila., 256, 33 L. Int., 22, 8 L. Gaz., 21. After a return of Nulla bona to an execution upon a Part J.J ACTiosr and suit. 19 judgment against a corporation the judgment creditor may file a bill in equity to compel the stockholders to proportionately refund the amount re- ceived by them from the proceeds of a sale of the corporate property, or so much thereof as may be necessary to pay the complainant's debt. Bat the corporation must be added as a party defendant. Upon agreement to indemnify for rejecting corporator's vote.— Weckerley v. Lutheran Congregatiouj 1831, 3 E., 172. The judge of a cor- poration election cannot maintain an action against the corporation to recover upon an alleged indemnity the amount of damages and costs previously recovered against him by a corporator for having fraudulently and maliciously refused to receive his vote. Delinquent instalments of stock.^Canal Co. v. Sausom, 1803, 1 Binn., 69. A corporation may waive its stipulated right to forfeit stock for non- payment of instalments and proceed to recover delinquent instalments by action. III. By and against 'Wbom maintainable: Parties etc. See also IV. 1, Cwpaeity to be a Party as a Corporation. See also Forfeiture, Creation of Corporations. See also IV and III, 3. Violation of incorporating statute.— Philadelphia «. Crans, 1866, 7 Leg. & Ins. Eep., 348. The courts will not recognize as a party a corpor- ation which, though having a formal certificate of incorporation, has disre- garded the plain provisions of the statute authorizing its creation. Cause arising before incorporation. — Packer v. Sunbury &Erie E. Co., 1852, 7 H. , 211. A corporation plaintiff is not barred from equitable relief on the ground that the alleged wrongs were committed before the issuing of letters patent to the plaintiff where there was no tardiness in the organiza- tion of the company sufficient to forfeit its corporate rights. Judicial notice of incorporation.— Mitcheson v. Harlan, 1859, C. P., 3 Phila., 385, 16 L. Int., 148. Courts will take judicial notice of the exis- tence of a corporation although the letters patent have been issued after suit brought. Suit by trustees.— Wolf t). Goddard, 1840, 9 Wts., 544. Although when a corporation sues in its own name it must be prepared to show its charter if its existence is put in issue by the pleadings, it is not necessary to produce the charter where suit is brought by its trustees. Suit as against unincorporated association— Amendment— Plead- ing— Error.— Meyers V. Elkins, 1879, C. P., 7 W. N. C, 280. When an action has been brought against defendants as an unincorporated association, and it afterward appears that the association was incorporated, the court will not allow an amendment. Overseers of Eoxborongh v. Bunn, 1824, 12 S. E., 291. After pleading to a declaration charging the defendants as a corporation, and going to trial as such, a corporation cannot, on a writ of error, take advantage of the action having been commenced against them before a justice in their individual characters. Limited partnership — ^Mining coal on another's land. — Oak Eidge Coa^l Co., V. Eogers, 1884, 16 W. N. C, 355. A limited partnership associa- tion organized under the Act of June 2, 1874 is so far a "corporation" that it may be sued under the Act of May 8, 1876 for mining coal upon the lands of another. 20 ACTION AND SUIT. [Part I. Foreign attachment— Forfeiture— Reversal of decree (rf forfeiture on appeal.— FarmeTs' and Mechanics' Bank v. Little, 1844, 8 W. &S., 207. In foreign attachment against a corporation as principal defendant the civil death of the latter by forfeiture of its charter before judgment against it dissolves the attachment ; and in such case the action of the appellate court, upon an appeal which did not have a suspensive affect, reversing such decree of forfeiture because based upon erroneous grounds, but making a like decree in effect does not, by relation, give the corporation an intermediate existence. S. In Suits for NegUgence, Mismanagement or Fraud of Directors. The corporation.— Simons v. Vulcan Oil Company, 1869, 11 Sm., 202. A fraud against a corporation by the directors may be redressed by an action against the directors in the name of the corporation: afSrming 6 Phila., 561, 25 L. Int., 156. Brown v. Orr, 1886, 18 W. N. C, 48. The corporation must be made a party to a proceeding to recover money misapplied by the directors. Proceeding must be in behalf of all the stockholders.— McAleer *. McMurray, 1868, 8 Sm., 126. A stockholder cannot maintain an action against the directors for a constructive fraud by them upon the corporation: affirming 6 Phila., 244, 24 L. Int., 260. Craig I). Gregg, 1876, 2 Nor., 19. An individual stockholder cannot main- tain a separate action against the directors of a corporation for damages sus- tained by reason of the negligence of the directors. The remedy of the stock- holder must be in form to protect the interests of the corporation as the trus- tee for all its stockholders and creditors. But see following case. Action by stockholder — ^Purchase of company's stock — Misappro- priation. — Kimmel v. Stoner, 1851, 6 H., 155. A stockholder may main- tain an action for damages against the corporate.ofBcers for the appropriation by the latter to themselves of the benefit of a purchase of the company's stock which was directed by resolution of such officers to be made " for the use of the company." Corporation and its assignee, defendants.— Macready v. Hart, 1863, D. C., 20 L. Int., 149. In a bill filed by stockholders against directors for relief against the fraud of the latter, the corporation and its as- signees are properly made parties defendant. It is not necessary that such a bill should allege the defendants to have been personally guilty of the al- leged frauds. Omission to make corporation defendant— Bill by part only of stock- holders. — Langolf V. Seiberlitch, 1851, C. P., 2 Parsons, 64. Individual corporators may maintain in their own name a bill in equity against the di- rectors or trustees to enjoin the laitter from unlawfully disposing of the cor- poration's property; in such a case an omission to name the corporation as a party defendant can be taken advantage of only by plea or demurrer, and is amendable; and a part only of the stockholders may file the bill in behalf of themselves and others standing in the same position. Directors as individual defendants— Fraud.— Watts' Appeal, 187.5, 28 Sm. , 370. A bill may be maintained by a stockholder or stockholders against directors personally where the latter are charged with mismanagement so gross and wilful as to amount to fraud. See also Spering's Appeal, 1872, 21 Sm., 11. Injunction— Stockholders plaintiff.— Diller v. Rosenthal, 1877, C. P., Luzerne, 6 Luz. Leg. Reg., 33. Corporations and their directors may be restrained by injunction from committing a breach of trust by misapplying the funds of the company. And a stockholder may file a bill for this purpose on behalf of himself and other stockholders. See also Fljnn v. Enterprise Building Assn., 1877, C. P., Luzerne, 6 Luz. Leg. Reg., 133. Part 7.] ACTION AND SUIT. 21 Same— Individual defendants.— Flynu v. Enterprise Building Assn., 1877, C. P., Luzerne, 6 Luz. Leg. Eeg., 133. Where an injunction is asked by stockholders against their corporation and certain persons, by name, the persons named must be joined as parties defendant. Complainant a guilty director— Demurrer.— Baird v. Midvale Steel Works, 1877, C. P., 12 Phila., 255, 34 L. Int., 12. A demurrer that one of the complainants in a bill in equity by stockholders against the directors and the corporation to redress certain illegal acts done by the directors, was a director and a participant in such acts, will be sustained. Partners.— Archer v. Rose, 1869, C, P. Phila., 3 Brewst., 264. A firm can maintain a bill against directors although one member of the firm is a director and a defendant. Creditors. — Warner v. Hopkins, 1886, 1 Am., 328. The creditors of an insolvent corporation may maintain a bill against the directors for misman- agement, and without joining the stockholders as co-plaintiffs where the cor- poration is hopelessly insolvent. Receiver.— Mccarty's Appeftl, 1885, 17 W. N. C, 182, 43 L. Int., 186, 33 Pitts. L. J., 454. The receiver of a dissolved corporation may maintain a bill in equity against its ofGlcers and directors to recover moneys of the corporation which they have wrongfully appropriated to themselves. 3. In Suits Growing out of the Contract of Subscription, See furiher Subscription. Corporation plaintiff— Privity of contract.— Steamship Co. v. Murphy, 1867, D. C, 6 Phila., 224, 24 L. Int., 228. A subscription to the stock of a proposed corporation may be sued upon by the corporation after it comes into existence. Such a contract is not void for want of either parties or con- sideration. Edinboro' Academy v. Robinson, 1860, 1 Wr., 210. An action may be brought by a corporation to recover a subscription to a fund agreed to be raised and devoted to a particular purpose by a number of persons who associate themselves for the purpose of so raising the fund and, after organization, applying it to such purpose, when such corporation is the form of organiza- tion adopted by the associates for carrying out the purpose, although the form of incorporation was not originally prescribed. In such case there is privity of contract between the subscriber and the corporation. See also Shober v. Lancaster County Park Association, 1871, 18 Sm., 429. Unpaiid instalments— Bill by creditors.— Dunn v. Blue Stone Co., 1883, C. p., 13 W. N. C, 57. A bill in equity by the general creditors of an in- solvent corporation will lie to compel the stockholders to pay the unpaid and uncalled portions of their subscriptions. See also Bank of Virginia v. Adams, 1850, C. P., 1 Parsons, 534. Same— Bill by some only of creditors.— Cornell's Appeal, 1886, 18 W. N. C. 289 44 L. Int., 37. A creditor of an insolvent corporation whose execution against the latter has been returned "Nulla bona" may maintain a bill in equity against stockholders to compel payment of unpaid subscrip- tions without having filed it on behalf of all the corporation's creditors, the other creditors not having availed themselves of their right to be made co- complainants, and without having made co-defendants all the stockholders who have not paid their subscripiions. Rescission of contract— Intervention of stockholders.— Lawrence County's Appeal, 1870, 17 Sm., 87. One stockholder cannot proceed against another to reimburse himself for any loss by virtue of his subscription. He is not a creditor ot any other stockholder. Therefore he cannot intervene in an equity suit, to prevent a decree in favor of another stockholder that the latter's subscription be rescinded on the ground of the corporation s fraud; and he cannot appeal. 22 ACTION AND SUIT. ^^"''^ ^• Rescissionfor fraud-Joinder Of individual as defendant-Subs^^^^^^ transaction.-Crawford County V. Pitt?*S- f E"%^^^^°^lf?:V tferesc^' 141. Jurisdiction over private corporations does not, in a biU tor tne rescm sion of a contract of subscription on the ground of fraud, authorize the joinder, as defendant, by supplemental bill, of an individual the cause for relief against whom arose out a subsequent, though somevyhat connected, transaction. See also Lawrence Ctounty v. North-Western Railroad Ck)., 1858, 8 C, 144. i, A» Affected by the Tra/nsfer of Stocle. Remedies for refusal to permit transfer, see II, 4. Suits to enforce transferee's liability for unpaid instalments, see Stock. Assignee liable for labor and materials under Act of 1874.— Bunn's Appeal, 1884, 9 Out., 49. The personal liability to creditors of corporar tions created under the Act of 1874, for work or labor done or materials fur- nished, imposed by the 14th Section of that Act (P. L. 73,) upon the stock- holders of such corporations, does not preclude such creditors from enforcing their remedy as siiiply creditors of such corporations by the creditors' bill ordinarily maintainable upon a corporation's insolvency to enforce the collec- tion of unpaid instalments upon the stock. Assignees of stock are liable in like manner as original subscribers. Transferee's contract with assignor. — Pittsburgh &c. Coal Co. v. Ot- terson, 1877, 4 W. N. C, 545. A corporation has no right of action against a transferee ot stock upon the latter's contract with his assignor to pay the assessments subsequent to the assignment. Assignment without transfer on company's books— Action for divi- dends. — Jacobs V. Telford &c. Turnpike Co., 1886, C. P., Montgomery, 2 Montgom. Co., 101. The ownership in stock of one to whom it has been as- signed by an indorsement upon the certificate without any transfer or note of the assignment upon the books of the company, is not affected by the company's tort in stating, in answer to interrogatories in attachment against the assignor, that the stock was the property of the latter, though having notice of the assignment. Ji! seems that such an assignee may maintain an action against the corporation to recover dividends accruing during his owner- ship. 5. In Suits Arising from Corporalion's Entry on Land. In statutory proceedings to assess damages, see Eminent Domain. See, as to remedies, II, 2, a. Tenants.— Pennsylvania E. Co. v. Eby, 1884, 11 Outer., 166. A tenant is "an owner or party interested" entitled to security before entry can be made on the property without his consent. He may recover in trespass for injury done by an unlawful entry. See also Brown v. Powell, 1855, 1 C, ^29. Same— Breach of covenant to change location — Mines. — Mine Hill & Schuylkill Haven E. Co. v. Lippincott, 1878, 5 Nor., 468. "Where a corpor- ation has a right of way over mining lands, and covenants with the owner tliereof that upon notice it will change its location, or permit the coal under- neath the way to be mined, a tenant of such owner, the terms of whose lease give him the right to mine all the coal in the land demised, may sue in the name of the landlord for the breach of such covenant : afarmine 2 Lee Chron., 337. ° * Part Z] ACTION AND SUIT. 23 Subsequent purchaser of land.— Zimmerman v. Union Canal Co., 1841, 1 W. & S., 346. Damages done to the land of private owners by the con- struction of the -works of corporations exercising the right of eminent do- main must be estimated as of the time when done, and a subsequent pur- chaser of the land cannot maintain, an action to recover such damages. Owner of ground rent.— Voegtly v. Pittsburgh & Fort Wayne E. Co., 1859, 2 Gr., 243. The owner of a ground rent cannot maintain against a corporation which has appropriated a part of the land out of which the rent issues a bill to compel an apportionment of the rent and an extinguishment by the company of so much of the rent as is chargeable to the part appro- priated. Such an owner retains nnimpaired his remedy against the ground, and must exhaust that remedy in the first instance. Purchaser at sheriffs sale— Contract to purchase land— Specific performance— Execution.— Pittsburgh & Steubenville E. Co. v. Jones, 1868, 9 Sm., 433. Where specific performance of a corporation's contract to purchase land taken by it in the construction of its works is decreed, with leave to the vendor to issue execution upon the company's failure to comply with the decree ; and upon such failure, execution is so issued ; the purcha- sers at the sherift' s sale under such execution may maintain ejectment for the land ; and their title is subject to no easement by the company although the latter has laid its tracks on the land. 6. In Suits during Sequestration. For earnings— Corporation plaintiff.— Beeler v. Turnpike Co., 1850, 2'H., 162. An action for earnings made by a corporation while it is in the hands of a sequestrator is properly brought in the name of the corporation. Bill of discovery— Judgment creditor— Sequestrator plaintiff.— Bevens v. The Turnpike Co., 1849, 10 B., 174. A bill to compel discovery of assets lies against a corporation under the Act of 1836, Sections 9 and 10, The required oath is to be elicited by joining the officers. But such a bill will not lie at the instance of a judgment creditor against au insolvent cor- poration ; the creditor must pursue the remedy of sequestration, and the bill must be filed by the sequestrator. 7. Agents and Servants of Corporations, See also generally Agency, Officers. Trespass vi et armis— Ejecting with unnecessary violence.— Wei- ler V. Pennsylvania Eailroad Co., 1882, C. P. Allegheny, 29 Pitts. L. J., 347. An action of trespass m el armis cannot be maintained against a corporation for the use of unnecessary violence by its officers in ejecting an intruder from its premises; the remedy is against such officers individually. Unlawful entry on land. — Brown v. Powell, 1855, 1 C, 229. If a cor- poration, under a license from the owner of the fee, enter upon land occu- pied by a tenant for years, without any assessment or payment of damages, the tenant may maintain an action of trespass against it, or against its agents or servants. S, Assignees and Trustees. Assignees of slock, see III, 4. Action for unpaid subscriptions. — Yeager v. Scranton Trust Co., 1884, 14 W. N. C. , 296. Under an assignment by a corporation for the benefit of its creditors, the assignee may properly make a call tor unpaid instalments of the stock, and bring an action for such instalments in the name of the corp- oration to the use of the assignee. 24 ACTION AND SUIT. [IVlrf /. Creditors' bill against directors of corporation in liands of assignee —Abatement— Warner V. Hopkins, 1886, 1 Am., 328. The directors and officers of a corporation are liable for mismanagement, not only to tne cor- poration or its assignees, but' also to the corporation's creditors. Where, therefore, a bill has been filed by the latter against the directors of an insol- vent bank in the hands of an assignee, and another creditors' bill has also been filed, wherein the assignee is joined as a defendant, a plea in abate- ment of the pendency of these suits is properly maintained on demurrer in a subsequent action brought in the name of the corporation to the use of its assignee. The technical objection to such a plea, that the parties are not the same, -will not be sustained. Nor -will the defence that there had been no prior demand by the creditors upon, and refusal by the corpora- tion to proceed for the creditors' benefit, where the wrong complained of was perpetrated by the managers themselves. Keorganization trustee— Bill for contribution.— Fawcett v. Ball, 1879, 26 Pitts. L. J., 201. Where a number of the stockholders of an insolvent corporation pay the debts of the latter upon a compromise, purchase its as- sets at public sale and assign them to one of their number for a nominal consideration, the latter cannot maintain a bill for contribution, as a creditor, against the members who did not join in payment of the debts; but he may maintain such a bill as trustee for the syndicate of stockholders who paid the debts. Action by trustee against member for proportion of expenses- Amendment.— Comfort V. Leland, 1837, 3 Whart., 81. Where the act of Assembly incorporating a company provides that each member of the com- pany, his heirs and successors, shall pay ''to the trustees for the time being" his proportion of certain expenses, an action against a member to recover such proportion need not be brought in the corporate name, but is properly brought in the name of the trustees; and where brought in the name of the corporation treasurer, as treasurer, it is error to refuse to permit the proper amendment. 9. Receivers. Receiver, when a proper plaintifif.— Philadelphia & Reading Coal & Iron Co. V. Schaade, 1881, C. P., 11 W. N. C, 20, 15 Phila., 285, 38 L. Int., 392. Where a transaction which furnished the cause of an action was with the receivers of a corporation, the action must be brought in the name of the re- ceiver, by leave of the court, and not in the name of the corporation. An affidavit of defence alleging such a want of proper parties plaintiff, is sufficient. Bill against directors to recover misappropriated moneys. — McCarty's Appeal, 1885, 17 W. N. C, 182, 43 L. Int. 186, 33 Pitts. L. J., 454. The receiver of a dissolved corporation may maintain a bill in equity against its officers and directors to recover moneys of the corporation which they have wrongfully appropriated to themselves. Opening judgment to admit receiver as a defendant. — Hays v. Pitts- burgh & Castle Shannon Railroad Co., 1880, C. P., Allegheny, 27 Pitts. L. J., 105. Where, upon due permission, suit has been commenced against a corporation in the hands of a receiver, with notice to the latter, and an ap- pearance entered by the receiver, without an affidavit of defence; judgment may be taken against the corporation for want of an affidavit of defence; Such a judgment will not be set aside upon a rule by the receiver, but the judgment will be opened and the receiver given permission to make himself a party defendant and file an affidavit of defence. Substitution of, in attachment.— Pickersgill «. Lycoming Ins. Co., 1882, 39 L. Int., 312. The dissolution of a corporation and the appointment of a receiver for it does not dissolve an attachment previously served upon it as garnishee. The suit may be prosecuted to judgment upon the substitution of the receiver as a party. Part /.] ACTION AND SUIT. 25 Foreign corporation.— Stewart r. United states Insurance Co., 1839, 9 Wts., 126. A foreign corporation may maintain an action in the courts of Pennsylvania, either in its own name or in the name of its receivers. 10. Miscellaneous. De facto officers.— Woodward v. The Church, C. P., 1884, 14 "W. N. c., 240. The de facto officers of a corporation are entitled to represent it in legal proceedings. Bond to directors.— Greenfield v. Yeates, 1828, 2 R., 157. A bond given to directors of a corporation as such, without mention of the succes- sors in office of the obligees, may be sued upon in the individual names of such directors to the use of the corporation. Creditor's bill to compel refunding of proceeds of corporate pro- perty— Bickley V. Paul, C. P., 1875, 2 W. N. C, 301, 11 Phila., 256, 33 L. Int., 22, 8 Leg. Gaz., 21 . After a return of Nulla hona to an execution upon a judgment against a corporation, the judgment creditor may file a bill in equity to compel the stockholders to proportionately refund the amount received by them from the proceeds of a sale of the corporate pro- perty, or so much thereof as may be necessary to pay the complainant's debt. But the corporation must be added as a party defendant. Taxpayers' bill to compel cancellation of municipal bonds.— Mc- Cowan V. New Castle & Darlington Kailroad Co., 1858, 6 Pitts. L. J., 5. In equity proceedings by tax-payers of a municipality to compel a corpora- tion to surrender for cancellation bonds of the municipality, in re-exchange for stock of the corporation held by the municipality, the latter must be made a party. Bill for receiver. — Gravenstine's Appeal, 1865, 13 Wr., 310. A receiver cannot be appointed for a corporation upon a bill to which it is not a party. Holder of corporation bond. — Carr v. LeFevre, 1856, 3 C, 413. Bonds issued by a corporation, payable to bearer, though not strictly negotiable under the law merchant, are capable of passing by delivery so as to enable the holder to maintain an action on them in his own name. See also Fox V. Iron Co., 1860, D. C, Phila., 17 L. Int., 149. Same— Coupons and interest warrants.— Philadelphia & Reading R. Co. V. Smith, 1884, 9 Outer. , 195. The holder of overdue interest coupons and interest warrants, whether attached to, or severed from bonds issued by a corporation, payable to bearer, may maintain an action thereon against the corporation. See also Phila. & Reading R. Co. v. Fidelity Trust Co., 1884, 9 Outer., 216. Same— Obligee named, or assigns.— Bunting v. Camden & Atlantic R. Co., 1876, 31 Sm., 254. Corporation bonds payable to an obligee named, or his assigns, are not assignable under the Act of 1715 so as to enable the as- signee to sue in his own name. Stockholder vs. corporation.— Brinham u WellersburgCoalCo., 1864, 11 Wr., 43. A stockholder may stand to the corporation in the relation of creditor, and as such bring an action at law against it. Injunction against corporation— Special injury.- Cumberland Val- le Railroad Co.'s Appeal, 1869, 12 Sm., 218. An individual cannot main- tain a bill against a corporation to restrain it from abuse of its corporate franchises, where he suffers no greater injury from such abuse than such as is suffered by the citizens at large. Foreign corporations.— Stewart v. United states Ins. Co., 1839, 9Wts., 126. A foreign corporation may maintain an action in Pennsylvania, either in its own name or in the name of its receivers. 26 ACTION AND SUIT.— ACTIVE AND CONTEIBUTIlfG MEMBEES. [Part I. Same— Sci. fa. sur mortgage.— Leasnre v. Union Mutual Life Ins. Co., 1879, 10 Nor., 491. A foreign corporation may secure a loan by taking a mortgage of land in this State, and may sue in the courts of this State to en- force payment by scire facias sur mortage. See also American Slate Co. v. PhUUpsburg Bank, 1880, 8 "W. N. C, 430, 37 L. Int., 366. IV. Abatement of Actions. See, as to the plea, Abatement. Attachment— Dissolution.— Hays v. Lycoming Ins. Co., 1882, 3 Out., 621. Where judgment is obtained and an attachment thereon issued and served against an existing corporation, the action against the garnishee does not abate by the dissolution of the corporation. Consolidation of corporations. — Baltimore & Susquehanna Bailroad Co. II. Musselman, 1856, 2 Gr., 348. The consolidation of a defendant corpora- tion with other corporations under a law which provided for a, continuance of all its liabilities is not such a dissolution of the corporation as wiU abate an action pending at the time of the dissolution. It seems that such would not be effect of a mere voluntary consolidation of the corporations, without any such provision in the act providing therefor. Separate suits by creditors and by corporation to use of assignee.— Penn Bank v. Hopkins, 1886, 1 Am., 328. Where the creditors of an insol- vent corporation have brought a bill in equity against the directors for neg- ligence and mismanagement, a subsequent suit for the same cause brought in the name of the corporation to the use of its assignee will be abated. Action against extinct corporation. — Beifler v. Honesdale & Delaware Plank Road Co., 1885, C. P. Wayne, 1 C. C. E., 64. A corporation's exis- tence is extinguished by a sherift's sale of its rights and franchises under the Act of April 7, 1870, and no action can be maintained against it thereafter. Whether, where a writ is served on the former treasurer of such an extinct corporation, the proper form of procedure is for the party served to take a rule on the plaintiff to show cause why the writ should not be abated, diib- itatur. Preservation of creditors' rights.— Credit Mobilier, in re Dissolution of, 1873, 10 Phila., 2, 30 L. Int., 44. Although the dissolution of a corpo- ration pending suit against it technically causes an abatement thereof, it seems that the assets of a defunct corporation still constitute a trust fund for its ci-editors and that a court of equity will lay hold of the fund and see that it is duly applied. But the right of creditors under the Act of April 9, 1856 (P. L. 293) to make claim upon the funds of the dissolved corporation in the hands of the trustees therein mentioned is not entirely free JFrom doubt. ACTING OFFICERS. See Officers. ACTIVE AND CONTRIBUTING laEIIIBERS. See Disfranchisement. Pavt JJ] ADEQUACY. — ADVICE OF COUNSKL. 27 ADEQUACY. Of remedy, see Equity, Eminent Domain. Of damages, see Eminent Domain. Of security on corporation's hondfor land damages, see Eminent Domain. ADSIII^ISXRATOR. As party to proceedings to assess damages for corporation's entry on land, see Emi- nent Domain. AD9IISSIBILIXY. See Evidence. ADimSSIOPI. iS. PMla^ & Eeading Eailroad Co., 1882, 39 L. Int., 280. An act of Assembly -which does no more than authorize one private corporation to guarantee the bonds of another is a private act, of which the court will not take judical notice upon the hearing of a rule for judgment for want of a sufficient affidavit of defence. II. Otber Affldavits. In proceedings under the right of eminent domain, see Eminent Domain. Upon writ of error— By corporation's agent.— Academy of Fine Arts V. Power, 1850, 2 H., 442. In the case of a writ of error by a corporation the required affidavit may be made by an agent of the corporation who is neither specially deputed for the purpose nor is its president or chief officer. Appeal— Sectuestrator.— Turnpike Co. o. McAnulty, 1842, 4 W. & S., 293. The sequestrator of a corporation may appeal from an award of arbi- trators against the company and make the oath and enter into the recogni- zance required. Removal of cause — ^Agent. — Vankirk v. Pennsylvania Bailroad Co., 1874, 26 Sm., 66. In an application for the removal of a cause in which a corporation is a party the affidavit of the latter may be made by an agent or employee. Setting aside service on ofS.cer. — Moran v. Connellsville Coal Co., C. P., Allegheny, 2 Schuylk. Leg. Kec, 278. Service returned as made upon the proper officer of a corporation will not be set aside three months later ujjon an affidavit that the person served is not an officer of the company. Injunction against corporation in Supreme Court. — Buck Mountain Coal Co. V. Lehigh Coal & Navigation Co., 1876, 2 W. N. C, 241, 8 Leg. Gaz., 15. The Supreme Court will not assume original jurisdiction of a case of injunction against a corporation unless sufficient reasons why the bill should not be filed in the proper county court appear, verified by affidavit filed with the bill. Affidavit denjring acceptance of bill. — ^Batt. «. Pennsylvania Globe Gas Light Co., 1886, C. P., 43 L. Int., 86. An acceptance' by the treasurer of a corporation in his official capacity is within a rule of court providing that in any aQtion upon a bill it shall not be necessary for a plaintiff who has filed a copy etc. to prove on the trial the acceptance unless the defendant by affi- davit etc. has denied the latter. The plaintiff is not bound to prove the treasurer's authority to accept unless the defendant has by affidavit denied it. Upon bill for discovery.— Bevans v. Turnpike Co., 1849, 10 B., 174. Upon a bill against a corporation to compel discovery of assets the required oath is to be elicited by joining the officers. AmxnVG CORPORAXH SEAL See Seal, Mandamus. AFTER-ACQUIRED PROPERTY. See Mortgage. -Part 7.] AGENcy. 31 I. POWERS OP AGENTS OF COEPORATIONS. II. CORPORATION'S LIABILITY FOE ACTS OF AGENT— RATIFICA- IIL LIABILITY OF AGENTS OF CORPORATIONS. IV. AGENCY FOE SUBSCRIBERS AND STOCKHOLDERS ETC.— POW- ERS OF ATTORNEY ETC. V. MISCELLANEOUS. Attorneys, see Power of Attorney; also TV. Commissioners appointed to receive subscriptions, see Subscription. Delegation of power of expulsion, see Disfranchisement. Making profit at expense of principal, see Fraud, Officers, Trustees. Quo warranto against agent, see %io Warranto. Service upon, see Service. See also Acceptance and Assent, Promoters. I. FoYrers of Agents of Corporations. See also II and III. In legal proceedings— Affidavit on error.— Academy of Fine Arts v. Power, 1850, 2 H., 442. In the case of a writ of error by a corporation the required affidavit may be made by an agent of the corporation who is neither specially deputed for the purpose nor is its president or chief officer. Same— Removal of cause.— Vankirk v. Pennsylvania Railroad Co , 1874, 26 Sm., 66. In an application for the removal of a cause in which a corpora- tion is a party the affidavit for the latter may be made by an agent or em- ployee. Same— Appeal from award.— Washington & Pittsburgh Turnpike Co. V. Crane, 1822, 8 8. & R., 517. A mere authorized agent of a corporation, who is neither president, chief officer, cashier, treasurer nor secretary, has no power under the Act of March 22, 1817 to enter an appeal from an award of arbitrators. See also Schuylkill Navigation Co. v. Thomas, 1823, 8 S. & R., 431. Notice to quit.- Wolf ». Goddard, 1840, 9 Wts., 544. The authority of the agent of a corporation to give notice to its tenant to quit possession need not be under seal. Parol contract witll subscriber. — ^Miller v. Hanover Junction &c. Rail- road Co., 1878, 6 Nor., 95. A subscriber to stock cannot set up, to defeat his subscription, a parol contract by the agents of the company contrary to that set forl^ in the subscription book. II. Corporation's Uability for Acts of Agrent- Rat- ification. See also I and III. Oenerally— LawM but unauthorized contracts— Acceptance of benefit of, — Allegheny City v. McClurkan, 1850, 2 H., 81. A corporation is liable upon contracts duly made in its name by its accredited agents, al- though such contracts are not expressly authorized by its charter, where they 32 AGENCY. [•^'"■* ■^■ have been entered into publicly and in such manner as by necessary and ir- resistible implication to be within the knowledge of the corporators, and the latter have received the benefit flowing from such contracts, unless the latter are prohibited by statute. Municipal corporations are vnthin this rule. Adams Express Co. v. Schlessinger, 1874, 25 Sm., 246. A contract by an agent of a corporation, made in the coui-se of his business as agent, is bind- ing upon the corporation although in excess of his instructions. See also Tanner v. Oil Creek Co., 1866, 3 Sm., 411. Stockholders not agents— Assent of directors.— Insurance Bank v. Bank of the United States, 1847, D. C.,Phila., 4 Clark, 125, 7 P. L. J., 129. A contract which shall bind a corporation must be made by the persons to whom the management of its affairs is by law committed. The stockholders, even all of them at a regular meeting, cannot, even by a unanimous vote, bind the corporation by contract, unless their act is adopted by the directors. What acts are sufficient to constitute an adoption, is a question of law ; whether such acts were done, is a question of fact. When the stockholders of a corporation, or those who afterward become such, enter into an agree- ment that the corporation shall do a certain act, the individuals making the contract are bound by it, and if it is broken, they, and not the corporation, are liable for the breach. President as general agent— Note accepted in extinguishment of debt. — Dougherty v. Hunter, 1867, 3 Sm., 380. Where the president of a corporation customarily acts as its business agent, with its knowledge and without objection, making sales, settling accounts and collecting debte, and actual authority so to do may therefore be inferred, the corporation will be bound by the president's acceptance in extinguishment of a debt due the corporation of a note payable to the president in his individual name, with- out official designation, where the proceeds of the note go to the credit of the company. Admissions and acts as evidence.— Spalding v. The Bank, 1848, 9 B., 28. The admissions as to matters within the scope of his agency of an officer of a corporation who is also its general agent are evidence against the cor- poration. Magill V. Kauffman, 1818, 4 S. & R., 317. The acts and declarations of the trustees and agents of an association both before and after incorporation are admissible in evidence against those represented. Hackney v. Allegheny Ins. Co., 1846, 4 B., 185. The declarations of an officer or agent of a corporation, not within the scope of his authority, do not bind the corporation, and are not admissible in evidence against it. Recovery in trespass as evidence.— Goundie v. Northampton Water Co., 1847, 7 B., 233. A recovery in an action of trespass against officers and agents of a corporation is not evidence against the corporation without proof of privity. Act prohibited byby-law— Usage.— Chambersburg Ins. Co. v. Smith, 1849, 1 J., 120. Where supervision of the transfer of stock has, by their uniform practice, been entrusted by the directors of a corporation to the sec- retary, and such practice thereby becomes a tacitly adopted rule of the com- pany, of which the public has notice and upon which the public acts, a trans- fer permitted by such officer is binding upon the corporation notwithstand- ing that an unenforced by-law might be construed as prohibiting it. Agency for other party.— Fradulent over-issue of stock.— Wright's Appeal, 1882, 3 Out., 425. A corporation cannot be held liable for the un- authorized act of its president in obtaining genuine stock from a holder, giv- ing the latter his personal due bill therefor, transferring the stock under a power of attorney and sub.'ieqnently issuing to such former holder certifi- cates of an equal number of shares of fraudulently over-issued stock. In such a transaction the president, acting under a power of attorney, is merely the agent of the other party. ^"rt /.] AGENCY. 33 Ultra vires. — Hagerstown Bank v. Loudon Savings Fund Society, 1861, 3 Gr., 135. The binding effect of the act of a corporation's agent cannot be questioned, where the act was authorized by the board of directors, upon the ground that the act was ultra vires. Fraud.— National Fire Ins. Co.'s Estate, 1880, C. P., 8 W. N. C, 436. The fraud of officers and agents of a corporation will be imputed to the corp- oration itself where the latter, after obtaining full knowledge of it, retains the firuits thereof. Same— In sale of goods.— Erie City Iron Works v. Barber, 1884, 10 Out., 125. The rule that a vendor of goods is liable to the purchaser for fraudulent representations made by his agent acting within the scope of his authority, applies to corporations as well as to natural persons. The deceit of a corporation's president and manager in such a case is the deceit of the corporation. Same— Over-issue of stock.— Bank of Kentucky V. Schuylkill Bank, 1846, C. P., Phila., 1 Parsons, 180. There is no obligation upon the pur- chaser of corporate stock to see to the surrender of the preceding certificate or its due assignment. An omission so to do does not affect his right to re- cover from the corporation for a fraudulent over-issue of stock by its agent. Affirmed by Supreme Court. Tort.— Pennsylvania Railroad Co. v. Vandiver, 1862, 2 Wr., 365. Acorp- oration is liable for the torts of its agents committed in the course of the business of the corporation which they are entrusted to i)erform. See also Kew York &c. Telegraph Co. v. Dryburg, 1860, 11 C, 298. Malicious prosecution.— Fenton v. Sewing Machine Co., 1874, D. C, 31 L. Int., 132, 9 Phila., 189. A corporation is liable to an action for malicious prosecution where the latter was originated and carried on by its chief officer in its behalf, with its knowledge and for its benefit. No formal authorization of the prosecution is necessary in order to impose liability. Independent contractor— Article XVI, Section 8, Constitution.— Edmondson v. Pittsburgh, McKeesport & Youghiogheny Railroad Co., 1886, 17 W. N. C. , 46. The rule that a person is not liable for damages resulting from the negligence of one employed by him as an independent contractor applies to corporations possessing the right of eminent domain. Such liar bility is not imposed by Section 8, Articde XVI, of the Constitution. Neither would that Section apply where a corporation is constructing its works upon land purchased by it and not taken under the right of eminent domain. Rhoads v. Lancaster Ave. Improvement Co., 1886, C. P., Montgomery, 17 W. N. C, 125, 1 Montgom. Co., 181. A contractor who merely, performs for a corporation certain work at so much per unit of work, and under the direction and control of an officer of the corporation, is not such an inde- pendent contractor as that his negligence will not render the' corporation liable. A corporation which is vested with its charter rights upon the inherent condition of keeping its works fit for the safe use of the public cannot divest itself of its responsibility by transferring the performance of its duties to a private individual. Statement by promoter. — Roberts v.' Crystal Spring Water Co., 1881, C. P., Chester, 1 Chest. Co., 437. A statement by a promoter of a proposed corporation in the application for the charter does not constitute a contract which the corporation when created is bound to carry out, e. g. a state- ment that a certain amount of full paid stock is to be issued to certain par- ties in full payment for real estate to be conveyed to the corporation by such parties does not preclude the latter from issuing a scire /acios upon a mortgage given them by the corporation for the purchase money of such real esto.te. Ratification,— Richardson v. Sewing Machine Co., 1870, 17 Pitts. L. J., i, 1 Leg. Gaz., 206. The doctrine of ratification is as applicable to corpora- tions ais to natural persons where the contract is such as the corporation is by its charter empowered to make. 3— MUKPHY. 34 AGENCY. -P"'^ ^J Kelaey v. The Bank, 1871, 19 Sm., 426. The masim Omnis ratiluxbifio retrotrahitur et mandato aequiparatur applies as well to a corporation as to an individual, and is equally to be presumed from the absence of dissent. III. I^iability of Agrents of Corporations. See also I and II. Disclosure of principal's name — Note. — Fisher«. Rhodes, I860, 4Phila., 94, 17 L. Int., 2&. The principle that when an agent discloses the name of his principal, he is not personally liable to the party with whom he deals, though he may give a note in his own name, applies to transactions by offi- cers of corporations. Whether such a note was given and received as the note of the company, is a question for the jury. Form of sealed instrument. — Hoskins v. Mehaffy, 1824, 11 S. & E., 126. Where in the body of a sealed instrument the covenants are stated as though made directly by a corporation with the plaintiff, but it is signed and sealed with the seal of the president, who is duly authorized to enter into the con- tract as the corporation's agent, the latter is not personally liable upon it. Act punishable by penalty— Presumption. — Comm. v. Ohio & Penn- sylvania Railroad Co., 1856, 1 Gr., 329. A servant of a corporation who does an act punishable by a penalty is personally responsible for it unless it be shovm that his act was authorized by the corporation. There is no prima fade presumption is that he was so authorized. Committee of directors.— Beeson v. Lang, 1877, 4 Nor., 197. The mem- bers of a committee of the directors of a corporation, elected, in pursuance of an arrangement with its creditors, to assume management of the corpora- tion's affairs, are not personally liable for goods contracted for by them and used in the conduct of the corporation business. Trespass— Unlawful entry on land.— Brown v. Powell, 1855, 1 C, 229. If a corporation, under a license from the owner of the fee, enter upon land occupied by a tenant for years without any assessment or payment of dam- ages, the tenant may maintain an action of trespass against it, or against its agents or servants. Trespass vi et armis— l^ecting with unnecessary violence.— Weiler t). Penna. R. Co., 1882, C. P., Allegheny, 29 Pitts. L. J.. 347. An action of trespass m et armis cannot be maintained against a corporation for the use by its officers of unnecessary violence in ejecting an intruder from its premises; the remedy is against such officers individually. I"V. Ag:ency for Subscribers and Stockfaolders etc.— Powers of Attorney etc. See also Power of Attorney. Ratiflcation^of subscription-Evidence.-McCnlly «. Pittsbg.& Connells- riUe Railroad Co., 1858, 8 C, 25. A subscription to the stock of a corpora- tion m the name of a third person, without precedent authority, is an act which 13 capable of ratification. A letter of attorney executed by the person in whose name a subscription was made, constituting the attorney his proxy to vote at a meeting of the company, is evidence of ratification of such per- son's contract of subscription to be submitted to the jury. McHose V. Wheeler, 1863, 9 Wr 32. Where a company is formed of the creditors of an insolvent firm the fact that one of the defendants in an action to enforce the individual liability of the stockholders held a judgment against the firm which bisattorney satisfied for stock of the corpoiation, without a disavowal of the act by his principal, is some evidence of the latter's ratifi- cation of a subacnption made for him. »""<.ci » rauui Fart J.] AGENCY. 35 Same — Insufficient evidence.— Pittston Passenger Railway Co. v. Black- man, 1877, C. P., Luzerne, 6Luz. Leg. Reg., 115. Where a defendant has not subscribed to corporation stock and does not know that his name is on the list of stockholders, the mere sending to him of notices of assessments and failure on his part to reply, are not sufficient to render him liable on the ground of ratification of a subscription made for him. Agency to transfer stock etc.— Powers of attorney.— German Union Building Association v. Sendmeyer, 1865, 14 Wr. , 67. A corporation is bound to transfer stock upon the demand of a certificate holder who produces a power of attorney to transfer executed in blank. The holder may fill up the blank. Denny r. Lyon, 1860, 2 Wr. , 98. ' When a power of attorney to transfer stock is given for the sole purpose of paying a particular debt, it is exhausted by its use for that purpose, and the owner is thereupon entitled to the return of the stock, notwithstanding that the attorney has subsequently transferred it under the power for another purpose by erasing the name first inserted and ins^ting another. Lehigh Coal & Navigation Co. ■». Mohr, 1877, 2 Nor. , 228. The mere pre- sentation of the certificates by an alleged agent of a holder of a corporation loan is not sufficient authority to the corporation for a transfer. Omission to sign transfer as agent. — Chambersburg Ins. Co. v. Smith, 1849, 1 J., 120. A stockholder empowered the secretary of the corporation in writing to transfer certain stock. In pursuance of such power the secretary made an entry of the transfer in the books, writing after such entry, "See paper filed." The paper referred to was his power to transfer. This he wafered to the book, and attested the entry of transfer as secretary, omitting to sign the transfer as attorney. Meld that this omission did not vitiate the transfer. Dealings with stock by agent— Bstoppeli—Larkin's Appeal, 1861, 2 Wr., 457. Where a feme sole holds stock in a corporation in the name of a trustee, in accordsDCe with the by-laws, discharging her liabilities as a cor- porator from time to Ijme, through a third person as an agent, and such agent borrows money from the corporation upon the stock as his own, and gives a mortgage therefor which finally is satisfied by his pretended surren- der of the stock, the corporation is liable to the feme sote for the value of the stock. She is not estopped by the silence of her trustee in permitting the agent's name to be called instead of his own for paym«pl.t of dues. V. miscellaneous. Ultra vires act done as agent. — Philadelphia v. Western Union Tele- graph Co., 1876, C. P., 2 W. N. C, 455, 11 Phila., 327, 33 L. Int., 129. A cor- poration cannot justify an act which under its own charter is ultra vires by doing it jmnfly with another corporiation possessing the power to do it, or by doing it as the agent of such corporation. Ultra vires act through agent— Acquisition of land by foreign cor- poration.— Comm. V. New York, Lake Erie & West«m R. Co., 1887, 19 W. N. C, 1, 44 L. Int., 178. A foreign corporation cannot purchase the charter of a Pennsylvania corporation through the intervention of an individual agent secretly acting on behalf of such foreign corporation and thereby ob- tain the control and practical ownership of lands in Pennsylvania which it is not authorized to hold directly ; and such lands are subject to escheat although the legal title to them is held by the Pennsylvania corporation. Bight to delegate power.— Middletown Turnpike Co. V. Watson, 1829, 1 R 329 The treasurer of a corporation has no right to delegate his powers to another agent of the corporation without the permission of the board of managers. 36 AGENCY. — ALIEN-ATIOJf. IPort I. Establishnient of agencies for stock transfer.— Bank of Kentucky v. SchnyUdll Bank, 1846, C. P., Phila., 1 Parsons, 180. Where a charter au- thorizes the transfer of stock at such places as the president and directors shall by their by-laws prescribe, and the president and directors pass a by- law providing that the stock shall be transferable at A. and " in other places where the bank shall appoint agents " lor the pmpose, a resolution of the president and directors establishing such an agency at a particular place is a valid exercise of the authority conferred by the charter and by-law. Affirmed by Supreme Court. Attorney retained by only few of stockholders. — ^Brown «. Mann£ic- turing Co., 1850, D. C, 1 Phila., 73, 7 L. Int., 110. A rule to show cause why an inquest of damages should not be set aside and judgment opened will be discharged where it appears that the counsel who assumes to appear on behalf of the corporation asking for the rule was retained by only a few of the stockholders. Quo warranto against agent of corporation— College professor.— Phillips V. Comm., 1881, 2 Out., 394. The Act of June 14, 1836, by which jurisdiction in quo warranto is conferred upon the courts of common pleas, confers no jurisdiction except in questions concerning the exercise of strictly corporate offices. No authority is given to issue the writ against a mere servant, employee or agent of a corporation, e. g. a professor in an incor- porated university: reversing 1 Del. Co., 13. Agents as officers— Sec. 66, Criminal Code. — Comm. v. Christian, 1872, 9 Phila., 556, 29 L. Int., 341. A mere agent of a private corporation (such as a soliciting agent of an insurance company) is not an "officer " within the meaning of Section 66 of the Act of March 31, 1860. See CoTUract. Between landowner and corporation as to damages for laiter's entry, see Eminent Domain. Comm. V. O'Donnell, 1847, Brightly, 111. The Legislature may incorpo- rate aliens. Alsatian Beneficial Association, 1860, 11 C, 79. All the members of a corporation chartered under the Act of April 8, 18.3.3, must be citizens of the United States and of Pennsylvania. A clause in the charter author- izing persons who have declared their intention of becoming citizens to become members is illegal. Eby V. Northern Pacific Eailroad Co., 1879, C. P., 13 Phila., 161, 36 L. Int., 164. A corporation chartered by Congress is neither an alien nor a " citizen of another State " within the meaning of Section 639 of the U. S Revised Statutes ; hence a suit to which it is a party may he removed from a State to a Federal court at any time before trial or final hearing AI,lEI«AXIOI«. Of essential franchises of corporations, /.n Powers of Corporations, Franchisfn Lease. ' ' Corporation'srightof;— Generally.— Burton's Appeal 1868 7Sm 213 It seems that the right of alienation belongs to a corpo^oi as well asto an Part /.] ALIENATION. — AMBIGUITY. 37 individual, where no restraint is imposed by the charter. See this case fur- ther a.s to decreeing a sale of church property under the Act of 1853 not- ivithstanding a charter prohibition. Same— Lease. — Cass v. Manchester Iron & Steel Co., 1881, U. S. C. C, W. D. Penna., 29 Pitts. L. J., 210. A corporation chartered for manufac- turing purposes under the Act of 1874 has no power to lease its "plant" and thereby relinquish the exercise of its franchises to others. Officers' right of, — Junction Bailroad Co. v. Penn^lvania BaUroad Co., 1875, 2 W. N. C, 277. The chief officer of a corporation has no power to make any contract involving the aliening of any of the corporation's proj)- erty or franchises. The corporation cannot be equitably estopped by such an act. Same — ^Trustees— Injunction. — Langolf v. Seiberlitch, 1851, C. P., 2 Parsons, 64. A power given to trustees by a charter to dispose of the cor- porate property for the use of the corporation does not authorize a convey- ance to trustees to employ it under trusts purporting to be for the use of the corporation, but depriving the corporators of all dominion and control over it. Such a disposition may be ftestrained by injunction. Same — ^Majority of directors. — Martin v. Continental Passenger Eail- way Co., 1880, C. P., 37 L. Int., 132, 2Schuylk. Leg. Kec., 233. A majority of the board of directors of a corporation cannot put the works of the com- pany beyond the control of the stockholders by selling or leasing them with- out the stockholders' consent. The rule is not altered by the feet that the directors control a majority of the shares. ALLEGIAIKCE. Of corporation, see Forfeiture, Aliens, Citizenship of Corporations. AI^XEITAXION. Cf charter, see Amendment, Charter, Constitutional Law. Of location of corporate works, see Eminent Domain. Of physician's bill, see Disfranchisement. ALTERNATIVE A^^TARO. Of damages for land taken under the right of eminent domain, see Eminent Do- AMBIGITITY. Latent, see Pleading, Emdence. Jn charter, see Charter. 38 AMENDMENT. [Pflrf I. AMENDMEPIT. I. OF CHAETEES. 1. How AND BY Whom Amendments may be Made ob Applied FOE. 2. Change of Coepoeate Name. 3. Acceptance of Amendments. > IT. IN ACTIONS AND SUITS— PLEADING, PAETIES ETC. Of by-laws, see By-laws. Constitutional Amendments, see CojtstUiUioiuil Law. I. Amendment of Cliarters. Fmeer of Legislature to amend, see Constitutional Law, Charter Effect upon contract of subscription, see Subscription. t. How and by Whom Amendrrvents may be Made or Applied for. Application to be made in corporate capacity. — St. Mary's Church, 1821, 6 S. & E., 497. Under an act of Assembly providing that whenever corporations chartered thereunder desire to amend their ch^ters, it shall be la^diil for such corporations to apply for and obtain them, an application must be made by the corporation in its corporate capacity and not by a num- ber of individusi members thereof. Application not in corporate name, when sufficient.— Postley's Ap- peal, 1878, 26 Pitts. L. J., 63. A petition for the amendment of a charter is sufficient though not in the name of the corporation, where it sets forth the proceedings wherein the application for the amendment was authorized, and is signed by the president and secretary. Distinct classes of governing board.— St. Mary's Church, 1822, 7 S. & E., 516. "Where the governing board of asociety consists of distinct classes, an alteration of the charter can be lawfully made, in the absence of special charter provisions, only by a majority of each class, although ordinary busi- ness may be managed by a majority of the whole corporation. Directors. — United Fire Association d. Benseman, 1877, 4W. N. C, 1, 25 Pitts. L. J., 9. The directors of a corporation have no power to make, amend or repeal by-laws of the corporation unless such right is specially conferred by the charter. Comm. V. Cullen, 1850, 1 H., 132. Where the whole body of stockholders or persons in interest compose the corporation, the right of altering the char- ter resides in them, and is not delegated to the directors, who are entitled to the exercise merely of the ordinary corporate powers. See also Brown v. Mining Co., 1873, 10 Phila., 32, 30 L. Int., 124. Same— Submission to stockholders after court's approval.— Cressona Building Association, 1880, C. P. Schuylkill, 1 Schuylk. Leg. Eec, 177. A charter cannot be amended by the directors of a corporation without the knowledge and consent of the stockholders. An amendment will not be ap- proved before it has been submitted to the stockholders whefe a resolution of the directors provided that the amendment, after its approval by the court, should be submitted to the stockholders. Charter provision— Dissolution— Refusal of amendment.— Myers v. Unity Beneficial Association, C. P. Phila., July 6, 1848, Ms., Brightley's Dig., 404. The charter of a beneficial society provided that it should not be dissolved while fifteen members were unwilling. Held that an alteration of the charter providing that a majority should be sufficient to dissolve the as- sociation could not be made against the vrishes of sixteen members voting against the alteration. Part /.] AMENDMENT. 39 Besolntion of amendment in absence of tmstee.— St Maiy's Cbnrch, 1822, 7 S. & R., 516. 4- resolution in favor of an alteration of a charter, passed by a board of trustees in the absence of a member who has been un- lawfully expelled from the board, upon the ground of an implied resignation, ia unlawful. Notice of proposed amendment.— Swedes' Church Case, Dec. 18, 1847, C. P., Phila., Ms., Brightley's Dig., 404. An alteration in the charter of a corporation cannot be made on the vote of a majority at a stated meeting of the corporation convened without notice of the intended proposition to alter the charter ; a notice that an alteration of the constitution will be inoposed at a meeting must be given to all parties interested ; otherwise a bare ma- jority vrill not be held sufficient. Mandamns to compel affixing of seal.— Comm. v. Trustees of St. Mary's Church, 1821, 6 S. & R., 506. A mandamus will not be granted uiMjn the application of a m^ority of the members of a corporation to com? pel the board of trustees in whom the corporate rights are vested to affix the common seal to alterations and amendments of the charter. Approval by court— Charter provisions.— Journalists' Fund, 1871, 0. P., 8 Phila., 272, 28 L. Int., 2&0. A prox>osed charter wherein there is no provision requiring amendments thereto to be made with the approval of the court or wherein there is a provision implying that amendments may be made without such approval, will not be granted. See also United Daugh- ters of Cornish, 1860, 11 C, 80. Jones V. Wadsworth, 1876, C. P., 11 Phila., 227, 33 L. Int., 390. Where a charter provides that it may be altered or amended with the consent of a certain number of the corporators, no change can be made merely by such consent. Such a provision merely authorizes the specified number to ask an approval of proposed amendments from the courts. Contents of application. — Grand Lodge, Ancient Order of United Work- men, 1885, 43 L. Int., 261. An application for an amendment to a charter should set forth everything necessary to enable the court to pass upon the legality of the proposed change. Amendment must be beneficial.— Holy Trinity Church, 1884, C. P., Chester, 2 Chest. Co., 249. An amendment will not be granted where the court is not satisfied that it would be beneficial to the corporation. Appeal from approval. — Postley's Appeal, 1878, 26 Pitts. L. J., 63. No appeal lies from an order approving an amendment to a charter. Ujjon cer tiorari the Supreme Court can only inquire into the regularity of the pro. ceedings. Unauthorized additions to proposed charter.— Alsatian Beneficial Assn., 1860, 11 C, 79. No word can be added to a charter, as in filling up blanks, after it has been signed by the associates, preparatory to submission for approval. S. Change of Corporate Na/rae. Acts of April 20, 1869, & April 29, 1874— Taking name of de- funct corporation. — ^First Presbyterian Church of Bloomfield, 1886, 1 Am., 156. The Act of April 20, 1869, giving to the courts of common pleas power to change the names of corporations, is not repealed by the Act of April 29, 1874. The Act of 1869 applies to religious as well as secular cor- porations. A corporation will be allowed under the Act to change its name to that borne by another corporation which is practically defunct, when such a change of name will not afiiect the rights of the objecting corporation of the same name. Notice to Auditor Greneral. — First Presbyterian Church of Bloomfield, 1884, 11 Outer., 543. The power of the courte of common pleas, under the Act of April 20, 1869 (P. L., 82), to entertain a petition for the change of the 40 AMENDMBNT. [PaH I. name Of a corporation, cannot be exercised where no notice of the application has been given to the Auditor General, as provided in the Act. The A<*of April 20, 1869 (P. h., 82), requiring a notice to the Auditor General of an application to change a corporate name, applies tamcorporated religious societies. It applies to all corporations not for profit as weU as to those for profit. 3. Acceptance of Amendments. See, as to ackeptance of charter, Acceptance and Assent, I. Corporate seal not conclusive.— St. Mary's Church, 1823, 7 S. & R., 516. A proposal for the alteration of a charter is not necessarily to be considered the act of the corporation because it is under the corporate seal; the court may inquire by what authority it was aflSxed. Luplied acceptance. — ^Hummel v. Lycoming Insurance Co., 1875, 1 W. N. C, 259. A supplement to a charter formally accepted by only the direc- tors of the corporation may be validly accepted by the corporators by acting for a long period upon the powers therein given. See also Robinson's Appeal, 1875 2 W. N. C, 150; Lycominglns. Co. v. Buck, 1872, C. P., Schuylkill, 1 Jjaz. L. Reg., 351, 1 Leg. Chron. R., 257; FeU v. McHenry, 1862, 6 Wr., 41. Same — ^Penna. R. Co. — Pennsylvania R. Co. V. Duncan, 1886, 1 Am., 352. The purchase of the State's Main Line by the Pennsylvania Railroad Com- pany under the Act of May 15, 1857 was an acceptance by that Company of a new charter at that time. As to result of such acceptance, see s. c, Constitutional Law, Eminent Domain. Same — What is not, — Comm. ■». Cullen, 1850, 1 H., 132. "Where the di^ rectors of a corporation have assumed to adopt an amendment to the charter without submitting it formally to the consideration of the corporators, the mere non-action of the latter for a period of two months after the official notification of such amendment and a failure to elect trustees under the provisions of the charter as unmodified by the amendment, do not constitute an implied acceptance, nor does the election of corporate oflSeers in pursu- ance of the amendment where there is a remonstrance by members against such election on the ground of non-acceptance. See also, as to change in mode of election, Hunsicker v. Turnpike Co., infra. Assent of three-fourths of stockholders.— Comm. ■». Pittsburgh Forge & Iron Co., 1870, C. P., Dauphin, 2 Pear., 374. Where an act of Assembly confers certain privileges ujran a corporation provided three-fourths of the stockholders assent, three-fourths of the whole number of stockholders must assent. Almost unanimous assent at a meeting of less than that number is not sufficient. Denial of acceptance— Stock vote.— Mercantile Library Co., 1868, C. p., 2 Brewst., 447. Where it is denied that a proposed amendment to the charter of a corporation has been adopted by the stockholders, the court before approving it will order a stock vote to be taken. New Constitution— Implied acceptance— Mode of election.— Hun- sicker ». Perkiomen &c. Turnpike Co., 1884, C. P., Montgomery, 1 Montgom. Co., 41. Although a corporation may bring itself within the operation of the new State Constitution by other action than the formal acceptance pre- scribed by the Act of April 29, 1874, * yet a mere departure from the accus- tomed mode of voting prescribed by the original charter to that prescribed by a statute passed subsequently to the adoption of the new Constitution does not of itself bring the corporation under the operation of the latter. *But see Baker's Appeal, 1885, 13 Outer., 461, infra. \ Part Z] AMENDMBNT. 41 ^,*?cSr?i^5°**'*^ cannot accept,— Acts of 1876 & 1878— Baker's Ap- peal, 1885, 130nter.,461. Where acharter provides that "at each annual meet- ing of the stockholders the directors of the preceding year shall submit to the meeting a fall and fair statement of the afiairs and proceedings of the coiporation for snch year," the act of the directors in passing during such year a resolution accepting the provisions of the new Constitution cannot be validly ratified by the stockholders at such annual meeting. The directors of a corporation for profit have no jwwer to make such acceptance. The Act of May 22, 1878, authorizing acceptance by directors, applies only to charita- ble corporations having no stockholders. In the case of corporations for profit such acceptance can be made only in the method prescribed bv the Act of April 17, 1876. ' Statute— Implied acceptance— Payment of tax under,— Union Pas- senger Ewy. Co. V. Philadelphia, 1877, 2 Nor., 429. Where a corporation has several times paid, without protest, an increased fax prescribed by a statute passed subsequently to its incorporation, it is a legal conclusion that the corporation has accepted such statute in order to obtain the benefits flowing from such acceptance, and it cannot thereafter refuse to pay the in- creased tax. Affirmed by U. S. Sup. Ct., 8 W. N. C, 377. Same— When not presumed— Forfeiture.— Comm. v. Bank of The United States, 1841, 2 Ash., 349. An acceptance by a corporation of a law, upon noii-compliance with the provisions of which a right to enforce a forfeiture of its charter is grounded, will not be presnmed in the proceedings against the corporation from merely the snpposed fact that the legislation was of a character beneficial to the corporation. Non-acceptance, when immaterial.— Comm. v. Bonsail, 1838, 3 Whart., 559. Where the Legislature has expressly reserved to itself the power to alter the constitution of a corporation, the validity of such an alteration is not affected by the absence of the corporators' assent thereto. II. Amendment in Actions and Suits— Pleading^s, Parties etc. Amendment of return, see Service. Of petition for viewers, see EmineiU Domain. Action against individuals— Incorporation.— Meyers v. Elkins, C. P., 1879, 7 W. N. C, 280. Where an action has been brought again^ defend- ants as an unincorporated association, and it afterward appears that the asso- ciation was incorporated, the court will not allow an amendment. Same— Acts done as corporators.- Gardner v. Post, 1862, 7 Wr., 19. In an action against several individuals for acts done by them as directors and stockholders in an alleged corpoi'ation an amendment to the declaration, setting forth that the said company was never legally incorporated, will not be allowed, since a new and distinct cause of action would be thereby intro- duced. Action by treasurer instead" of trustees. — Comfort v. Leland, 1837, 3 Whart., 81. Where the act of Assembly incorporating a company provides that each member of the company, his heirs and successors, shall pay to the trustees for the time being his proportion of certain expenses, an action against a memher to recover such proportion need not be brought in the cor- porate name, but is properly brought in the name of the trustees; and where brought in the name of the corporation treasurer, as treasurer, it is error to refuse to permit the proper amendment. Pendency of rule — ^Il^unction. — Packer v. Sunbury & Erie Eailroad Ca, 1852, 7 H., 211. That a bill in equity has not been properly brought in the corporate name will not avail to prevent a preliminary injunction where a motion is pending to amend the bill by changing the name. 42 AMENDMENT. — ANSWEB. [Part I' After judgment on award— Misnomer.— Marsh v. Wilkes-Barre, 1872, C. P., Lnzeme, 1 Luz. Leg. Reg., 173. Under the Amendment Acts of 1846 and 1842 a misnomer of a corporation defendant may be amended after a judgment on an award and the is.sne of execution, where the true party has been served appeared by counsel and taken defence upon the merits. Mandamns against officers— Non-joinder.— Comm. v. Coit, C. P., 1884, 15 W. N. C. 270. A writ of mandamus will lie to compel the officers of a corporation to permit a director to have free access to the corporation's books and papers in order that he may properly fuliil his duties as a director. In such writ the corporation must be joined as a defendant, but its non-joinder is no ground for quashing the writ; leave will be given to amend. Bill against directors— Non-joinder.— Langolf v. Seiberlitch, 1851, C. P., 2 Parsons, 64. An omission to name the corporation as a party defend- ant in a bill by corporators against the directors or trustees to ei^join the latter irom unlawfully disposing of the corporate property, is amendable. Damages for entry— Legality of entry. — Pittsburgh Junction E. Co. v. McCutcheon, 1886, 18 W. N. C, 527. A plaintiff filing a declaration in an action for damages caused to his property by the construction of a corporate work in a manner alleged in such declaration to be illegal may amend by adding a count proceeding upon the assumption that such construction was legal but seeking the recovery of consequential damages therefor. AIHOXIOK. See also Disfranchisement. Power of electing body.— Batterson v. Thompson, 1871, C. P., 8 Phila., 251, 28 Leg. Int. , 172, 3 Leg. Gaz. , 173. A power of amotion does not pass by a grant of power to elect, as incidental to the latter, but must be expressly reposed in the electing body by the charter. Trial. — Comm. V. Philips, 1880, C. P., Union, 11 Lane B., 195, 1 Del. Co., 41. A corporate officer cannot be removed without a full legal trial. Remedy quo warranto. — Comm. v. Philips, 1880, C. P. Union, 11 Lane. B., 195, 1 Del. Co., 41. Qim warranto is the proper remedy for unlawful amotion from a corporate office ; mandamus does not lie. But see next para- graph. College professorship— Quo warranto.— Philips v. Comm., 1881, 2 Out., 394. A professorship in an incorporated college is not an office. Qao warranto does not lie to determine the right thereto : reversing 11 Lane. B., 195, 1 Del. Co., 41. ANNUI^MENX OF CHARXEB. See Charter , Forfeiture. A^IS'WER. To petition for damages for taking of land, see Eminent Domain. To bill in equity, see Pleading. Part J.] APPEAL. 43 APPEAI^. I. WHEN AND BY WHOM AN APPEAL LIES : MISCELLANEOUS MATTERS. II. SECURITY ON APPEAL. From assessment of damages for entry on land, see Eminent Domain, Constitu- tional Law. From settlement of taxes, see Taxation. I. 'Wlien and by "Wliotn an Appeal Lies : miscellan- eous Blatters. From approval of charter.— Vanx's Appeal, 1885, 16 W. N. C, 229. The approval of a charter, nndier the Act of 1874, is in the discretion of the courts of common pleas, and no appeal lies from a decision approving a charter. But a certiorari will lie to review the proceedings so far as to see that they conform to the Act of Assembly. By agent — From award. — Washington & Pittsburgh Turnpike Co. v. Crane, 1822, 8 S. &R., 517. A mere authorized agent of a corporation, who is neither president, chief officer, cashier, treasurer nor secretary, has no power under the Act of March 22, 1817 to enter an appeal from an award of arbritrators. By sequestrator.— Turnpike Co. v. McAnulty, 1842, 4 W. & S., 293. The sequestrator of a corporation may appeal from an award of arbitrators against the company and make the oath and enter into the recognizance required. By intervening stockliolder— Eescission of subscription.— Lawrence County's Appeal, 1870, 17 Sm., 87. One stockholder cannot proceed against another to reimburse himself for any loss by virtue of his subscription. He is not a creditor of any other stockholder. Therefore he cannot intervene in an equity suit, to prevent a decree in favor of another stockholder that the latter's subscription be rescinded on the ground of fraud, and he cannot ap- peaL Effect of appeal— Foreign attachment-^Corporate existence.— Farmers' & Mechanics' Bank v. Little, 1844, 8 W. & S., 207. In foreign attachment against a corporation as principal defendant the civil death of the latter by forfeiture of its charter before judgment against it dissolves the attachment, and in such case the action of an appellate court, upon an appeal which did not have a suspensive effect, reversing such decree of forfeitvire because based upon erroneous grounds, but making a like decree in eflfect, does not, by rela- tion, give the corporation an intermediate existence. II. Security on Appeal. From award of arbitrators.— Good ». Royal Ins. Co. of Liverpool, 1873, C. P., Lancaster, 4 Lane. B., No. 36. Corporations appealing from an award of arbitrators must give bail in double the amount of costs accrued and likely to accrue, as in the case of natural persons. Arbitration Law of March 29, 1809.— Carpentier v. Delaware Insurance Co., 1810, 2 Binn., 263. Underthe Arbitration Law of March 29, 1809, acor- poration is entitled to appeal without entering into recognizance of bail. Act of March 22, 1817— Arbitration— Judgment of alderman.— Morris V. Delaware ASchuylkill Canal Co., 1842, 4 W. &S.,461. The Act of March 22, 1817, requiring corporations appellant to give absolute bail, applies to appeals from awards of arbitrators. 44 APPEAL. — APPLICATIOX. [Pltli I. Germanto-wn & Perkiomen Tnmpilfe Co. v. Naglee, 1823, 9 S. &. E.. 227. Under the Act of March 22, 18l7 a corporation other than municipal must give absolute security for the payment of debt, interest and costs on appeal- ing fi-om the judgment of an alderman. Same— Act of June 16, 1836.— Morris v. Delaware & Schuylkill Canal Co 1842 4W &S 461. The Arbitration Act of June 16, 1836 does not re- peal the provisions of the Act of March 22, 1817, by which corporations ap- pellant are required to give absolute bail. Same— Acts of 1842 and 1845.— Erie & Allegheny Railroad Co. v. At- lantic & Great Western Railroad Co., 1870, C. P., Erie, 3 Crum., Pitts., 232, 17 Pitts. L. J., 161. The Act of 1817 requiring corporations to give bail ab- solute for the debt in appeals from the awards of arbitrators was superseded by implication by the Non-imprisonment Act of 1842. The Act of 1845, re- quiring bail for only costs, applies to corporations as well as to natural per- sons. Same— Acts of 1845, 1847 and 1850.— Throop v. Susquehanna Mutual J*ire Insurance Co., 1878, C. P., Dauphin, 2 Pear., 306. In an appeal by a domestic corporation from an award security need be given only for the costs accrued or likely to accrue, as provided by the Act of March 20, 1845. The Act of March 15, 1847 applies only to a case of a writ of error or appeal to the Supreme Court from the decision of a district court, not to an appeal to the common pleas from the judgment of a justice of the peace or an award of arbitrators. ' Catasauqua Manufacturing Co. v. Lehigh County, 1880, C. P., Lehigh, 14 Phila., 644, 37 L. Int., 333. A private corporation appealing from an award of arbitrators must, under the Act of March 15, 1847, enter bail for the amount of the award, not merely for costs. The Act of April 25, 1850 (P. L., 571) does not repeal the Act of March 15, 1847. Corporation trustee— Appeal from decree of Orphans' Court — Nixon's Estate, 3880, O. C, 8 W. N. C, 390. A corporation acting in a fiduciary capacity and appealing as such in behalf of its cestui que trust from a decree of an orphans' court, is not within the purview of the Act' of March 15, 1847, requiring bail in appeals by corporations to be for debt, in- terest and costs. Jt seems that that provision applies to snits against such bodies in their corporate character for liabilities incurred by them as cor- porations. Security by sequestrator. — Turnpike Co. «. McAnnulty, 1842, 4 W. & S., 293. The sequestrator of a corporation may appeal from an award of arbi- trators against the company, and make the oath and enter into the recogni- zance required, application;. i. for charter. ii. miscellaneous. For unsubscribed stock, refusal of, see Subscription, Directors. For assessment of damages for land taken, see Mmineni Domain. Wrongful application of corporate property, see Fraud, Injunction. I. Por Cbarter. See further, Creation of Corporations. Jurisdiction— Supreme Court.- Tara Benevolent Society, 1874, D. C, 9 Phila., 287, 30 L. Int., 46. The Supreme^Court will not entertain jurisdic- tion of an application for a charter. Part I.'i APPLICATION'. 45 Strict compliance with requirements.— Philadelphia Artiaaos' Insti- tute, 1871, C. P., 8 Phila., 229, 28 L. Int., 13. A charter wUl not be granted unless the provisions of the law with respect to its contents and the applica- tiou are strictly complied with. Signature.— St. Stephen's Church, 1865, C. P., 6 Phila., 64, 22 L. Int., 357. A charter will not be approved when it is not signed by the applic- ants. Enterprise Beneficial Assn., 1875, C. P., 10 Phila., 380, 32 L. Int., 82. Three of the signers most be citizens of Pennsylvania. Omission of signature— Act of May 11, 1874.— Workingmen's Build- ing Association v. Coleman, 1879, 8 W. N. C, 17. The Act of May 11, 1874, providing for the validating of defective charters, validates a charter of a building association intended to be incorporated under the Act of April 12, 1859 but the application for which was not signed by the required number of persons. Must be written on single sheet.— Stevedores' Association, 1880, C. P., 14 Phila., 130, 37 L. Int., 262., A charter offerred for the approval of the court should be written upon a single piece of paper or parchment. Alexander Presbyterian Church, 1854, 6 C, 154. The court will not ap- prove a charter written on several sheets of paper and sewed together; it must be written on a single sheet. Interlineations.— Philadelphia Artizans' Association, 1871, C. P., 8 Phila., 229, 28 L. Int., 13. An important alteration or correction of the charter cannot be interlined. See also United Daughters of Cornish, 1860, lie, 80. Notice— Contents of,— Advertisement.— Parrish Church, 1874, C. P., Luzerne, 3 Luz. Leg. Reg. ,128. A notice of an intention to apply for a char- ter, under the Act of April 29, 1874, must state when the application is to be made and must set forth with reasonable accuracy the character and object of the corporation as it is expressed in the bod.y of the proposed charter. St. Paul School Association, 1879, C. P., Schuylkill, 1 Schuylk. Leg. Rec, 133. Where an application for a charter is maide in open court and duly published in two newspapers and actual notice given to an exceptant, the application will not be refused upon the ground that the published notices contained no statement of the time and place of the intended application. Enterprise Mutual Beneficial Association, 1875, C. P., 10 Phila., 380, 32 L. Int., 82. The advertised notice of an intended application for a charter should specify particularly the time and place of such intended application. Same— Fhiladelpliiar— Legal Intelligencer.— Application for Charter, 1876, C. P., 33 L. Int., 158. For purposes of the publication of notice of in- tended applications for charters, the Legal Intelligencer is not a newspaper of general circulation. The notice must be published in two newspapers and the Legal Intelligencer. See also Enterprise Beneficial Assn., 1875, C. P., 10 Phila., 380, 32 L. Int., 82. Lodgment in prothonotary's office. — Charter of Church of The Holy Communion, 1880, C. P., 8 W. N. C, 357, 37 L. Int., 124. Under the Act of April 29, 1874 the proposed charter of an intended corporation should be lodged in the prothonotary's ofBce. The public have a right to inspect it. Alteration after signature. — Alsatian Beneficial Association, 1860, 11 C, 79. No word can he added to a charter, as in filling up blanla, after it has been signed by the associates, preparatory to submission for approval. Bejection — Leave to withdraw. — Philadelphia Relief Association, 1879, C. P., 7 W. N. C, 146. Where an application for a charter has been reflised, leave will not be granted to withdraw the application. Contents of application — Generally — By-laws. — National Literaiy Assn., 1858, 6 C, 150. An application for a charter under the Act of April 6, 1791 must so far define the objects of the association as to satisfy the 46 APPLICATION. [Por* /. court that they fall within the meaning of the law giving the jurisdiction to incorporate, and to enable the associates to learn definitely the purposes ot the corporation and their rights and interests as corporators. The article giv- ing the power of making by-laws must provide that they be not inconsistent with the law of the land. Same— Proposed by-laws— Explicitness.— Red Men's Association, 1875, C. P., Crawford, 10 Phila., 546, 31 L. Int., 254 The document presented for examination by the court upon application for a charter should not consist of the association's proposed by-laws. The facts required by law to be set forth in the application for a charter should not be left to mere inference. Same— Purposes— Definiteness.— Independent Order of The Silver Star. 1872, C. P., Luzerne, 1 Luz. Leg. Keg., 768. The objects for which a pro- posed corporation is to be chartered must be clearly specified and particu- larized ; "benevolence and to encourage and foster among its members charity and self-improvement " is, standing alone, too indefinite a designa- tion of objects to warrant an approval of the application. Same — Amendments — ^Expulsion. — Journalists' Fund, 1871, O. P., 8 Phila., 272, 28 L. Int., 220. A charter vrill not be approved which sets forth amongits objects, "such other purposes as may be agreed upon by the associa- tion in the future. ' ' Nor where amendments to the charter are not required to be made with the approval of the court. Nor where there is no provision for trial before expulsion from membership. Same — " Political purposes. " — Alpha Association Charter, 1884, C. P., 15 W. N. C, 208. — A charter setting forth that the proposed corporation was formed, inter alia, for "political " purposes, will not be granted. Same — ^Place of business. — Enterprise Beneficial Assn., 1875, C. P., 10 Phila., 380, 32 L. Int., 82. An application for a charter must state the place where the business of the corporation is to be transacted ; a statement of the intended location of its "office " is not sufficient. Same— Number of trustees. — St. Stephens' Church, 1865, C. P., 6 Phila., 64, 22 L. Int., 357. A charter will not be approved when the number ot trustees proposed is indefinite. Same — Amendment of by-laws. — St. Paul's School Association, 1879, C. P., Schuylkill, 1 Schuylk. Leg. Eec, 133. The proposed charter of Sk corporation of the first class under the Act of 1874 need contain no provision for amendment or the enactment of by-laws. Same— Dissolution— Number of trustees — Amendments. — United Daughters of Cornish, 1860, 11 C, 80. A provision that the corporation shall not be dissolved while nine members remain, is illegal. Where a board of trustees is provided for, the number should be specified. A provision im- plying that amendments to the charter may be made vyithout the approval of the court, is illegal. Same — ^Name— Similarity to that of existing body. — ^In re Sons of Progress, 1883, C. P., 14 W. N. C, 31. Where the only distinction between the name of an existing corporation and the proposed name of a company applying for a charter is the addition of a merely descriptive word, e. g. "Independent," to the proposed name, the charter vyill not be granted. In re Societa Militare Italiana etc., 1887, C. P., 3 C. C. E., 441. That the proposed title for a beneficial and social corporation was made up by joining exceptants' unincorporate name to what was the unincorporate name of the applicants, without authority from, and contrary to the wishes of exceptants, and to prevent the latter from obtaining a charter under their own original unincorporate name, is not alone sufficient ground to prevent the approval of the charter. ■Pari I. APPLICATION. — APPORTIONMENT. 47 II. Miscellaneous. Purchase money of coiporate bonds.— Fox v. Iron Co., I860, D. C, 17 L. Int., 149. The hona fide purchaser for value of a coupon bond of a corporation takes it with the right to sue in his own name free from all equities which may have arisen against the previous holder, and with no obligation to see that the money is applied to the purposes of the corpora- tion. See also Carr v. LeFevre, 1856, 3 C, 413. Phila. & Sunbury Railroad Co. v Lewis, 1859, 9 C, 33. It is no defence to an action on the bonds of a corporation, that the corporation's books do not show what has become of the proceeds or that any value had been received for them. The purchaser is not bound to look to the application of the pur- chase-money. Of stock and dividends to payment of note due corporation plaintiff —Witness — Competency.— Klopp w. Lebanon Valley Bank, 1861, 3 Wr., 489. In an action by a corporation upon a promissory note against the makers thereof one of the payees is not competent to prove that the payees and indorsers were the real debtors, although the object of such testimony be to show that the alleged real debtors held stock and accrued dividends in the plaintid corporation which the latter is bound to retain and apply in payment of the note. Nor, were the witness competent, could such an ap- plication be compelled. Of debt due by corporation to payment of stock subscription.— Hogg's Appeal, 1878, 7 Nor., 195. Upon a sheriff's sale of the property and fran- chises of a corporation a creditor of the corporation cannot, in the auditor's distribution of the proceeds, have his claim against the corporation applied in payment of his indebtedness upon subscriptions to the stock. APPOINXMEPfX. Of attorneys and agents, see Power of Attorney. Of viewers to assess damages for land taken, see Eminent Domain. Of receivers, assignees, officers etc., see tttose several heads. APPORTIONMENT. Of taxes, see Taxation. Of dividends between life-tenant and remainderman, see Stock, Principal and In- come. Interest on corporate bonds.— Wilson's Appeal, 1885, 42 L. Int., 395. Interest upon the bonds of municipal and other corporations is apportiona- ble. Ground rent— Bill for, against corporation taking land.- Voegtly ». Pittsburgh & Fort Wayne R. Co., 1859, 2 Gr., 243. The owner of a ground rent cannot maintain against a corporation which has appropriated a part of the land out of which the rent issues a bill to compel an apportionment of the rent and an extinguishment by the company of so much of the rent as is chargeable to the part appropriated. Such an owner retains unimpaired his remedy against the ground, and must exhaust that remedy in the first instance. Of stock— Formation of two corporations from one.— Indiana Turn- pike Co. V. Phillips, 1830, 2 P. &W., 184. Where, under an act for the incorp- 48 APPORTIONMENT.— AEBITRATIOJI: [/"art/ oration of a company, commissioners are appointed and stock subscribed, a subsequent legislative enactment forming the inchoate corporation into two distinct corporations in lieu of the first and apportioning between them the stock subscribed, is unconstitutional, as impairing the obligation ot a con- tract, and an original subscriber is not liable to one of the two corporations upon his contract of subscription. APPRAISEMENT. Of capital stock, see Taxation. APPROPRIAXION. Of private property , under the right of eminent domain, see Eminent Domain. APPROVAI.. Of bond, see Bond, Eminent Domain. Of officers' r^orts by stockholders, see Mistake, Stockholders. APPURTENANCE. See Taxation. ARBITRATION. By-law provision for,— Kesort to courts— Expulsion.— McMahon ». Association, 1885, C. P., 42 L. Int., 151. A member of a corporation or so- ciety is not precluded from resorting to the courts by a by-law providing that, " disputes between the association and any of its members shall be decided by arbitration in lieu of legal proceedings." Sweeney v. Beneficial Society, 1884, C. P., 14 "W. N. C, 466, 486. A by-law compelling an aggrieved member to submit to arbitration within the society is invalid and a violation of it by resort to the civil courts is not a valid ground for expulsion. Damages for entry on land— Extent of sul>mission.— Miller v. E. & "W. V. E. Co., 1885, C. p., Lackawanna, 2 C. P. Repr., 10. A submission to arbitration of " the entire question of damages to the premises, actual or constructive, present or future," caused by a corporation's entry thereon under the right of eminent domain, includes such damages only as are suf- fered by the company's exercise of its right of eminent domain. Act of March 29, 1809.- Carpentier v. Delaware Insurance Co., 1810, 2 Binn. , 263. A corporation is included within the Arbitration Law of March 29,1809. Appeal— Agent— Act of March 22, 1817.— Washington & Pittsburgh Turnpike Co. ti; Crane, 1823, 8 S. & R., 517. A mere authorized agent of a corporation, who is neither president, chief officer, cashier, treasurer nor sec- retary, has no power under the Act of March 22, 1817, to enter an appeal from an award of arbitrators. Security on appeal— Costs.— Good v. Royal Ins. Co., 1873, C. P., Lan- caster, 4 Lane. B., No. 3&, Corporations appealing from an award of arbi- trators must give bail in double the amount of costs accrued and likely to accrue, as in the case of natural persons. Part /.] AEBITBATION. — ASSESSMENT. 49 Same— Act of March 29, 1809. — Carpentier v. Delaware Insurance Co., 1810, 2 Binn., 263. Under the Arbitration Law of March 29, 1809 a corpora- tion is entitled to appeal without entering into recognizance of bail. Same— Acts of March 22, 1817 and June 16, 1836.— Morris v. Dela- ware & SchuylkUl Canal Co., 1842, 4 W. & S., 461. The Act of March 22, 1817, requiring corporations appellant to give absolute bail, applies to ap- peals from awards of arbitrators. The Arbitration Act of June 16, 1836 does not repeal the provisions of the Act of March 22, 1817, by which corporations appellant are required to give absolute bail. Same— Acts of 1817, 1842 and 1845.— Erie & AUegheny E. Co. v. At- lantic & Great Western E. Co., 1870, C. P., Erie, 3Crum., Pitts., 232, 17 Pitts. L. J., 161. The Act of 1817, requiring corporations to give bail abso- lute for the debt in appeals from the awards of arbitrators, was superseded by implication by the Non-imprisonment Act of 1842. The Act of 1845, re- quiring baU for only costs, applies to corporations as well as to natural per- sons. Same — ^Acts of 1845, 1847 and 1850. — Throop v. Susquehanna Mut. Fire Ins. Co., 1878, C. P., Dauphin, 2 Pear. , 306. In an appeal by a domestic corp- oration from an award security need be given only for the costs accrued and likely to accrue, as provided by the Act of March 20, 1845. The Act of March 15, 1847 applies only to a case of a writ of error or appeal to the Supreme Court from a decision of a district court; not to an appeal to the common pleas from a judgment of a justice of the peace or an award of arbitrators. Catasauqua Manufacturing Co. ii. Lehigh County, 1880, C. P., Lehigh, 14 Phila., 644, 37 L. Int., 333. A private corporation appealing from an award of arbitrators must, under the Act of March 15, 1847, enter bail for the amount of the award, not merely for costs. The Act of April 25, 1850 (P. L., 571) does not repeal the Act of March 15, 1847. SeC[Uestrator may appeal. — Turnpike Co. v. McAnnnlty, 1842, 4 W. & S., 293. The sequestrator of a corporation may appeal from an award of ar- bitrators against the company, and make the oath and enter into the recog- nizance required. ARTICLES OF ASSOCIATION. See By-laws and Constitution. Assent to, see Acceptance and Assent, Subscription. ASSENT. See Acceptance and Assent. ASSESSMENT. Of damages for land taken under the right of eminent domain, see Eminent Do- main. Of taxes, see Taxation. Upon stock, see Stock, Stockholders, Loan, Injunction. Of cost of opening street on corporation's property, see Roads and Highways, Lia- bilities of Corporations. 4 — MUEPHY. 50 ASSIGNMENT. {Part I. I. ASSIGNMENT FOE THE BENEFIT OF CKEDITOBS. II. MISCELLANEOUS. Assignment of stock, see Stock, Stockholders— Voting after assignment of see Elections, Qtto Warranto— Competency of assignor as wUness for corporation, see Evidence. Of dividends, see Dividends. Of corporate bonds, see Bonds, Action and Suit, II, 5. Assignment iy corporation of its franchises and duties, see Franchises, Powers of Corporations. I. Assignment for the Benefit of Creditors. See further Insolvency. Corporation may make,— Preference. — Dana v. Bank of United states, 1843, 5 W. & S., 223. Unless restrained by its charter, a, corporation has the same power as a natural person to assign its property in trust for the payment of preferred creditors. By directors.— Dana «. Bank of United States, 1843, 5 "W. & S., 223. Directors who are given power in general terms to " manage the affairs " of a corporation may assign a portion of the effects of the corporation in trust to pay certain preferred creditors thereof, without obtarning the assent of the stockholders. By de facto ofiB.cers — ^Impeacbing assignment. — ^Inland Insurance Co. V. Good, 1876, C. P., Lancaster, 8 Lane. B., 117. A voluntary assignment of a corporation for the benefit of its creditors cannot be impugned in a suit by the assignee against a debtor of the corporation on the ground that the as- signment was made by only de facto officers whose regular term of office had expired. What not an assignment — ^Long lease. — Gratz v. Pennsylvania Rail- road Co., 1862, 5 Wr., 447. A lease of a railroad for a term of nine hundred and ninety-nine years, reserving rent which is payable wholly to the lessors or in relief of the demised property from taxes and mortgages, is not an as- signment for the benefit of creditors. Liability to pay bonus afber assignment. — Bank of The United states I". Comm., 1851, 5 H., 400. A corporation cannot merely by its own act dis- charge itself from an obligation which it has assumed, e. g. it cannot by making an assignment for the benefit of its creditors and thereby disabling itself from the full exercise of its franchises, relieve itself from the obliga- tion to pay the bonus exacted by the State as the price of those privileges. Dissolution on insolvency — Creditors' rights. — Dean's Appeal, 1881, 2 Out., 101. The principle that the rights of the creditors of an insolvent become fixed at the time of the assignment applies to the case of an insolv- ent corporation which has been dissolved by a decree of court. See also German Ins. Co. v. Edinburgh Furniture Co., 1881, 39 L. Int., 81. Officers as creditors. — Craig's Appeal, 1880, 11 Nor., 396. After an as- signmentby an insolvent corporation its officers may buy up outstanding claims against it, and, although they are stockholders and by the act of in- corporation are made liable for an amount equal to their subscriptions, they may participate in the distribution to creditors. As stockholders they are not sureties. See also National Loan & Building Society v. Lichtenwalner, 1882, 4 Out., 100. Loan by director for payment of fraudulent dividend— Stockholders' rights.— Kisterbock's Appeal, 1866, 1 Sm., 483. A director of a corporation Part /.] ASSIGNMENT. gi long prcTionsly rendered insolvent by the acts of the directors in fraudu- lently declaring dividends out of the capital is not entitled to receive from the assets of the corporation in the hands of its assignee for the benefit of creditors any part of a loan to the corporation made by him to enable it to pay a dividend so fraudulently declared, nntU the stookholdera fwho became such bj making deposits) are fully paid, irrespectively of the time of their deposits with relation to the fraudulent dividend for which the loan was Unpaid subscriptions— Issue of certificates.— West Clhester &c Eail- road Co V. Thomas, 1857, 2 Phila., 344. The unpaid subscriptions to the stock of a co^ration are subject to assignment, and pass under its assign- ment for creditors of all its property, "real, personal and mixed," and "all claiiM and demands whatsoever." The fact that the assignee cknnot issue certificates of payment is not a ground for refusing to permit him to receive the subscriptions. Upon such payment the certificates are issuable by the regular corporation ofEicers. Same— Assignee may sue.— Yeager v. Scranton Trust Co., 1884, 14 W N. C., 296. Under an assignment by a corporation for the benefit of its creditors the assignee may properly make a call for unpaid instalments of the stock, and bring an action for such instalments in the name of the corp- oration to the use of the assignee. See also Macnngie Bank v. Bastian 1881 38 L. Int., 310. ' ' Creditors' bill against directors— Abatement.— Wamer v. Hopkins, 1886, 1 Am., 328. Where the creditors of an insolvent corporation have brought a bill in equity against the directors for negligence and mismanage- ment, a subsequent suit for the same cause brought in the name of the corp- oration to the use of its assignee will be abated. Assignee as defendant— Stockholders' bill.— Macready v. Hart, 1863, D. C, 20 Ii. Int., 149. In a bill filed by stockholders against directors for relief against the fraud of the latter the corporation and ite assignee are properly made parties defendant. II. miscellaneous. Assignment of construction contract— Profits— Taxation as divi- dends. — Credit Mobilier v. Comm., 1870, 17 Sm., 233. Where a construc- tion contract entered into by an individual is by him assigned to trustees to be executed, the profits to be divided among certain persons, such profits are not taxable as corporation dividends notwithstanding that the cegtuis que trust are described as the stockholders in the corporation, and that the corp- oration guarantees all persons from liability in the execution of the con- tract, agrees to advance funds and receive a commisssion and does part of the work in the expectation that the contract would be transferred to it. The profits realized are not by these circumstances made corporate property. Stock assigned to bank as collateral— Execution.— Early's Appeal, 1879, 8 Nor., 411. Stock of a corporation assigned to the corporation itself as collateral security for a loan cannot be sold under an execution against the assignor. See also Eby v. Guest, 1880, 13 Nor., 160. Assignment of corporate securities — ^Notice. — Garrard v. Pittsbg. & Connellsville Railroad Co., 1857,5 C, 154. A party receiving from the pres- ident of a corporation, as collateral security for an antecedent individual debt owing to him by such president, a bond payable to the corporation, en- dorsed with a blank assignment the language of which imports the author- ity of the directors and therefore that an assignment is to be made by the president only for the purposes of the company, is not a bona fide holder without notice. The general rule is that the possession of the secu- rities of a corporation by its chief of&cer, is the possession of the corporation : affirming 1 Crumrine, 378. See also Pittsbg. & Connellsville Hailroad Co. f. Barker, 1857, 5 C, 160. 52 ASSIGJJMEST. — ASSUMPSIT.. [Part/. Assignment for reorganization— Suit by assignee for contribution. — Fawcett J). Ball, 1879, 26 Pitts. L. J., 201. Where a number of the stock- holders of an insolvent corporation pay the debts of the latter upon a com- promise, purchase its assets at public sale and assign them to one of their number for a nominal consideration, the latter cannot maintain a bill for contribution, as a creditor, against the members who did not join in pay- ment of the debts; but he may maintain such a bill as trustee for the syndic- ate of stockholders who paid the debts. associaxe; capacity. See Acceptance and Assent. ASSOCIAXIOX. See Partnership, Subscription, Application, Cre-aiion of Corporations. Assumpsix. Lies against corporation. — North Whitehall Township V. South White- hall Township, 1817, 3 S. & R., 116. Assumpsit lies against a corjwration on an implied contract. See also Pittsburgh & Bait. Coal Co. v. Allegheny Bank, 1877, 34, L. Int., 313, 25 Pitts. L. J., 18, and cases infra generally. Money received on void note. — Pittsburgh & Baltimore Coal Co. V. Alle- gheny Bank, 1877, 34 L. Int., 313, 25 Pitia. L. J., 18. Money received and used by'a corporation upon the security of a note in the corporate name which is void by reason of want of authority in the officer who signed it, may he recovered from the corporation under the common counts. Contract by agent of association afterward incorporated.— Swiss- helm V. Swissvale Laundry Co., 1880, 37 L. Int., 514. A contract under seal to sell land was made between the owner and a member and agent of an association intending at the time to become a corporation and shortly after- ward actually receiving its charter. The agent executed the contract as for himself alone although the intention of all parties was that the purchase should be by and for the association. The corporation accepted the contract in parol and entered into possession of the land. Held that the corporation was liable in assumpsit for the stipulated price. Compensation of officers. — Kilpatrick v. Penrose Ferry Bridge Co., 1865, 13 Nor., 118. The compensation of corporation officers must, to sup- port a recovery against the company, be fixed by express contract. There can be no recovery on a quantum meruit. Assessments under Act of 1874.— Richboro' Dairymen's Assn. u. Ryan, 1885, C. P., 42 L. Int., 268, 2 Chest. Co., 541, 33 Pitts. L. J., 36. A com- pany incorporated under the Act of 1874 cannot bring an action of assumpmt to recover the amount of an assessment of shares. "Ae remedy provided in the Act must be pursued. See also Richboro' Dairymen's Assn. u. Cornell, 1884, C. P., Bucks, 2Chest. Co., 293. Unsubscribed stock— Eefusal of stockholder's application.— Reese v. The Bank, 1855, 7 C, 78. Unsubscribed stock belongs to the corporators and must be disposed of for the benefit of all. Where a resolution of the direct- ors authorizes the is-sne of such stock to all the stockholders, one of the lat- ter, whose application is refused, may maintain assumpsit against the directors. Pavt 7.] ASSUMPSIT. — ATTACHMENT. 53 iflS,®^«*l*?>^^^*A*^*°^-^^'^ °^ stock.-Waln V. Bank of North America, lt«a, H 8. & K, 73. A special action of assumpgU lies for a refusal to permit a transfer of stock. ^ Jacobs «. Telford &c. Turnpike Co., 1886, C. P., Montgomery, 2 Montgom. Lo. , 101. rhe remedy for a refusal to permit or properly note upon the books of a corp^tion a transfer of stock is a special action on the case. The refusal is atort. Thelattermaybe waivedand an action brought in assitropsii only where the circumstances raise an implied contract. But amimpsit may he brought for the recovery of such dividends as were due at the date of the institution of the suit. See also Birmingham Fire Ins. C!o. v. Comm., 1879, 11 Nor., 72: Presby- !t^°^^^^^Sation «. Carlisle Bank, 1847, 5 B., 345; Boyeru. Savings Fund, 1877, C. P., Schuylkill, 1 Schuylk. Leg. Rec., 231. Preferred stock.— West Chester & Phila. E. Co. v. Jackson, 1875, 27 Sm., 321. Assumpsit is the properremedy for a corporation'sbreach of its contract with respect to the payment of dividends in issuing preferred stock. ATTTACHMKNT. I. WHEN AND AGAINST WHOM ATTACHMENT LIES, n. WHAT MAY BE ATTACHED. III. DISSOLUTION OP ATTACHMENT. IV. ATTACHMENT UNDER THE ACT OF 1869. V. FOREIGN ATTACHMENT. VI. MISCELLANEOUS. False answers to inierrogalories, as affecting ownership of stock, see Stockholders. I. "Wlien and against 'Wtaom Attacfameiit Lies. Insolvency— Public work.— Penrose «. Erie Canal Co., 1858, 3 Phila., 198; 15 L. Int., 316. An attachment will lie against an insolvent corpora- tion, and although such corporation be one created for the purpose of con- structing a public work. See also Reed v. Penrose, 1860, 12 C, 214. Dissolution— Receiver.— Hintermeister V. Organ Co., 1885, C. P., Lu- zerne, 3 C. P. Repr., 65, 74, 76, 1 C. C. R., 466. An attachment cannot be issued against a corporation or its receiver after dissolution. Corporation trustee. — North American Land Co's. Estate, 1868, C. P., 1 Brewst., 533. An attachment cannot issue to compel payment by a corporation trustee. But execution will be awarded. By creditor of corporation against reorganization trustee.— Balliet V. Brown, 1883, 7 Out., 546. A general creditor of a corporation cannot ob- ject to such a sale or transfer of its property by its directors as will prevent the continuance of its business and transfer the control of such property and business to a new corporation which is a reorganization of the old one. A trustee of the property of the original corporation who transfers the property in good faith, with the approval of the board of directors and the assent of the stockholders to such a newly-formed corporation in which the orignal is merged, is not liable as a garnishee of the latter when the attachment is issued after such transfer. When exclusive of equitable remedy.— Suydam v. Ins. Co., 1865, l Sm., 394. Judgment creditors of an insolvent corporation seeking to have funds belonging to the corporation, in the hands of natural persons made 54 ATTACHMENT. [Par* /. co-defendants with the corporation, applied to the payment of their judg- ments, cannot have their remedy by bill in equity; the statutory sequestra- tion or attachment-execution (Acts of June 16, 1836 and Mar. 20, 1845) are, by force of the Act of 1806, exclusive of all other remedies. Monongahela Navigation Co. v. Ledlie, 1843, D. C, AUegheny, 1 Clark, 498, P. L. J., Ill, 179. An attachment under the Act of June 16, 1836 does not lie on a judgment against a corporation. Fithian v. N. Y. & Erie Railroad Co., 1857, 7 C, 114. A foreign corpora- tion which has accepted the privilege of extending its works into this State upon condition of keeping at least one agent within the State, upon whom service of process might be made, is thereby brought within the jurisdiction of the Pennsylvania courts, and may be made garnishee in attachment. Barr v. King, 1880, 15 Nor., 485. A foreign corporation which is qualified to do business in this State by having complied with the statutory requi- sites, may be made garnishee in attachment-execution. II. "Wliat may be Attacbed. Stock.— Bonaffon v. Canal Co., I860. C. P., 4 Phila., 29, 17 L. Int., 52. Stock standing in a defendant's owa name may either be seized upon afi. fa. or attached in the hands of the corporation. Same — For debt of corporation. — ^Hawley «. The Bank, 1840, 10 wts., 230. The capital stock of a corporation owned by itself and in its own pos- session cannot be attached under the Act of June 16, 1836 for a debt due by the corporation itself. Unpaid stock. — Peterson v. Sinclair, 1877, 2 Nor., 250. A balance of a subscription in money to the stock of a corporation is attachable by its cred- itors as other debts are. Same — Insolvency. — Bunn's Appeal, 1884, 9 Out., 49. The unpaid and uncalled amounts due upon the stock of a corporation cannot upon its insolvency be attached by a judgment creditor of the corporation, since there can be no liability to pay until an assessment and decree by a competent authority. Such unpaid instalments constitute a trust fund for the benefit of all the creditors. By creditor of vendor of stock. — United States v. Yaughan, 1811, 3 Binn., 392. Where stock has been sold and the certificates and a power of attorney to transfer delivered to the purchaser, it cannot be attached by a creditor if the vendor, though his name still stand upon the books of the company as the owner. See also Finney's Appeal, 1868, 9 Sm., 398. Corporation's deposit.— Eeed v. Penrose, 1860, 12 C, 214. A deposit by a corporation is subject to attschment in the hands of the banker: affirming 6 Pitts. L. J., 131. See also Farmers' & Mechs'. Bank v. Eyan, 1870, 14 Sm., 236; Fox v. Reed, 3 Gr., 81. Same— Money needed to maintain works.— Eeed v. Penrose, I860, 12 C. , 214. Attachment lies against a deposit by an insolvent improvement company, although it be the duty of the company to apply the fund to maintaining the works: affirming 6 Pitts. L. J., 131. See also Fox v. Eeed, 3 Gr., 81. Same— Deposit by treasurer.— Penrose v. Erie Canal Co., 1858, 3 Phila., 198, 15 L. Int., 316. Money of a corporation deposited by its treasurer as such is the money of the corporation in the hands of the banker. Such money is not money in the treasury of the corporation, although the banker he the corporation's president. It is money due by the banker to the corporation, and is therefore subject to attachment by a creditor of the corporation. Part J.] ATTACHMENT. 55 Same— InsolTency— Debt to banker.— Penrose v. Erie Canal C!o., 1858, 3 Phila., 198, 15 L. Int., 316. It is no defence to an attachment of the funds of an insolvent corporation deposited with a banker, that the latter is a cred- itor of the corporation in an amount exceeding the funds in his hands. Moneys in hands of corporate officers. — Muhlenberg v. Eiler, 1878, C. P., Berks, 7 Luz. Leg. Eeg., 151, 1 Leg. Ciaon. E., 248. Moneys in the hands of the treasurer of a corporation, held in his fiduciary capacity as treas- urer, cannot be attached in execution against the company. Frank v. Polytechnic College, C. P., 1875, 2 "W. N. C, 244. An attach- ment sur judgment •will not be quashed upon the sole ground that the gar- nishee is an officer of the corporation defendant. It may be showil -what as- sets the .garnishee holds and in what manner he holds them. Rolling stock of foreign corporation.— Buffalo Coal Co. v. Rochester &c. Railroad Co., 1880, C. P., McKean, 8 "W. N. C, 126. Rolling stock found within this State, belonging to a foreign corporation having no officer or agent here, is subject to seizure npon foreign attachment. III. Dissolution of Attacbtneiit. Dissolution of corporation.— Hays ». Lycoming Ins. Co., 1882, 3 Out., 621. Where judgment is obtained and an attachment thereon issued against and served upon an existing corporation, the action against the garnishee does not abate by the dissolution of the corporation. Same— Appointment of receiver. — Pickersgill v. Lycoming Ins. Co., 1882, 39 L. Int., 312. The dissolution of a corporation and the appointment of a receiver for it does not dissolve an attachment previously served upon it as garnishee. The suit may be prosecuted to judgment upon the substi- tution of the receiver as a party. Merchants' Bank v. Petersburg Railroad Co., C. P., 1887, 4 "W. N. C, 264. The appointment of a receiver for a corporation has no efiect npon the validity of the lien of an attachment upon the corporate property served prior to such appointment. Frailey ». Ins. Co., 1874, 9 Phila., 219^ 31 L. Int., 356. Where an attach- ment is issued against a corporation and judgment obtained on it, but prior to such judgment the corporation has been dissolved and a receiver appoint- ed, the judgment and execution thereon will be set aside and the property given to the receiver. Forfeiture — Effect of appeal. — ^Farmers' and Mechanics' Bank v. Little, 1844, 8 W. & S., 207. In foreign attachment against a corporation an prin- cipal defendant the civil death of the latter by forfeiture of its charter before judgment against it dissolves the attachment; and in such case the action of the appellate court, upon an appeal which did not have a suspensive eflfect, reversing such decree of forfeiture because based upon erroneous grounds, but making a, like decree in effect, does not, by relation, give the corporation an intermediate existence. IV. Attacfament under the Act of 1869. May issue against corporation.-^Mechanics' Bank v. Miners' Bank, C. P., Carbon, 1883, 13 W. N. C, 515, 41 L. Int., 312. An attachment under the Act of 1869 may validly issue against a corporation except as to its real estate. The writ may be served upon the corporation by a delivery of a copy of the attachment,' with an inventory of the property attached, to the president or cashier of the corporation. By stockholders against directors— Fraud— " Debt."— Batroff v. Pioneer Tobacco Company, 1886, C. P., 17 W. N. C, 255. Stock- holders of a corporation who have transferred certain property to the latter, 56 ATTACHMENT. {_Part I. taking in payment partly stock and partly cash, npon false and frandnlent representations by ite oflScers as to the amount of subscriptions represented to have been already paid by others, cannot have an attachment under the Act of 1869 against the corporation for an unpaid balance of the price of such jfToperty, upon the alleged ground of an attempt by the oflScers to secrete the company's property in fraud of the plaintiff' claims. Such a claim is not a debt within the meaning of the Act, and would prejudice the rights of the company's creditors. V. Foreign Attactament. Foreign corporations. — Bushel v. Commonwealth Insurance Co., 1827, 15 S. & R., 172. A foreign corporation is subject to the process of foreign at- tachment. See also Bnfialo Coal Co. v. Eochester &c. E. Co., 1880, C. P., McKean, 8 W. N. C, 126. Harley v. Steam Packet Co., 1838, 2 Miles, 249. The liability of a for- eign corporation to foreign attachment is not aflTected by the citizeuBhip of the corporators. Same— As garnishees.— Meylert v. White, C. P., 1875, 5 w. N. c, 342. Foreign corporations cannot be made garnishees in foreign attachment. See also Barron v. Morrison, 1849, D. C, Phila., 2 Tr. & H. Prac., 526, and Christmas v. Biddle, 1850, 1 H., 222, infra. Jones V. N. Y. & Erie E. Co., 1857, 1 Gr., 457. A foreign corporation having a x>ortion of its works in this State and agents here upon whom ser- vice may be made, may be made garnishee in foreign attachment. Same— Insufficient service.— Dawson v. Cambell, 1837, 2 Miles, 170. A foreign corporation cannot besnnfmoned as garnishee in a foreign attachment by a service on its chief officer at the time of the service within the jurisdic- tion of the court. Same— Dissolved corporation— State, comity. — Hintenneister ». Or- gan Co., 1885, C. P., Luzerne, 33 Pitts. L. J., 365, 3 C. P. Eepr., 65, 74, 76, 1 C. C. K., 466. A foreign attachment £^inst a corporation chartered, dissolved and placed ui the hands of a receiver by another State cannot be maintained by one who was, at the time of such dissolution and appoint- ment, not only a citizen of such other State but a director of the company, and therefore bound by such proceedings. The allowance of such an attach- ment is forbidden by the principle of inter-State comity. Same— Stock of,— Christmas V. Biddle, 1850, 1 H., 222. Stock of a foreign corporation, transferable by the law of its creation only on the books of the corporation, is not subject to foreign attachment under the laws of Pennsylvania. Same— Stock heldby non-resident.— Greenwood v. Manufacturing Co., 1883, C. P., 13 W. N. C, 447. Stock in a foreign corporation held by a non- resident is not subject to foreign attachment, although the foreign corpora- tion has an office and transacts its principal business in the jurisdiction of the court from which such attachment issues. Service— Act of Mar. 17, 1856.— SUva e. Greenwald, 1886, C. P.. 2 C. C. E., 131. The return of service of a writ of foreign attachment against a Pennsylvania corporation must show compliance with the Act of March 17, 1856. Where service is made as though upon a foreign corporation it will be set aside. Dissolntion.— Bushel v. Commonwealth Insurance Co., 1827, 15 S. & B., 172. A foreign attachment against a corporation may be dissolved by giv- ing security for the debt and costs. Part /.] ATTACHMENT — BAIL AXD BECOGNIZAKCE. 57 TI* miscellaneous. Attachment of stock— Pi. fa,, on judgment.— Stoever v. Stoever, x«^, C. P., 3 W. N. C, 169. Upon jadgment ^gainst the garnishee in attach- ment-execution against stock of defendant in the corporation garnishee, the /./a. must issue against "the original defendant;" & fl. fa. commanding the sheriff to levy upon the goods etc. of the garnishee will be set aside. Same — Compelling transfer, — Gardiner v. Bank of Pennsylvania, 1807, 4 Y., 377. There is no method of compelling a transfer by a corporation of a snare of its stock to the plaintiff who has obtained a judgment in foreign at- tachment against the corporation as garnishee. Same— Assignee's action for damages.— Littell v. Scranton Gas & "Water Co., 1862, 5 Wr., 500. In an action for damages against a corpora- tion for a refusal to transfer stock which before the demand for a transfer has been attached by the assignor's creditors and sold by the sheriff, the plaintiff must show aiGSrmatively that the transfer to him was for a valuable consideration: affirming 2 Lo^ Leg. Obs., 82. ATTESTATION. Of corporate seal, see Seal, Bonds. ATTORNEY. Power of, see Pwcer of Attorney, Agency. Fees, see Counsel Feet. ATTORNEY GENERAL. See Forfeiture. AUCTION. Sale of nntaken stock.— Miners' Bank V. Water Co., C. P., Schuylkill, 2 Schnylk. Leg. Eec., 16. Where there is no provision in the charter of a corporation as to how nntaken stock shall be issued or sold, the company may lawfully sell the same at auction. A'WARD. See ArbUraiion. Of damages for corporation's taking of land, see Emineai Domain. BAII. AND RECOGNIZANCE. See Appeal II, Attachment, Errors. 58 BAILMENT — BEQUEST. [PoH L BAiLmEKcr. See Deposit, Attachment. BAL.I.O'r. See Elections. BAPIK. Attachment of deposit in, see Deposit, Attachment, II. BAXKRVPXCV. Hassinger's Case, 1840, 2 Ash., 287. The stockholders of a coiporation cannot oppose the discharge in bankruptcy of a petitioner who has embez- zled the corporation's property; by becoming stockholders they have sur- rendered the control of the property represented by the stock to the presid- ent and managers, who alone could oppose the petitioners for that cause. The holders of unauthorized stock cannot oppose such discharge, since such stock is binding on the company and the owners come within the abovp principle. Nor can the holders of unauthorized certificates of loan oppose the discharge; for whether they are prejudiced or not depends on the sol- vency of the corporation, which cannot be inquired into in such a proceeding; its solvency is therefore presumed. BBNBFICIAL, O'WIKBRSHIP. Of stock, see Stock and Stockholders. BEJMEFITS. To land owner, from construction of corporate works, see Emient Domain. To corporate property from opening of streets, see Roads and Highways. Acceptance by corporation of benefits of legislation or of Constitutional provisions passed subsequently to incorporation, see Acceptance and Assent, Constitutional Law. Acceptance by corporation of benefit of contract, see Acceptance and Assent, Con- tract, Estoppel. BEQUEST. Of stock, rights in, of life-tenant and remainderman, see Stock, Principal and Income. Corporation's capacity to take as trustee.— Philadelphia v. Elliott, 1831, 3 R., 170. A legacy left to a corporation with a direction to apply it, not to the general purposes of the corporation, but to particular objects within the scope of its corporate duties, is good, and the corporation has capacity to take it and act as trustee. , .... Part J.] BEQUEST. — BILLS AND NOTES. 59 Of stock— Befiisal to permit transfer on ground of indebtedness.— Presbyterian Congregation v. Carlisle Bank, 1847, 5 B., 345. Where a testa- tor has bequeathed forty shares of bank stock to four persons in equal shares, and the bank has permitted a transfer by three of the legatees of thirty of the shares, it cannot afterward, upon the attainment of majority by the fourth legatee, refuse to permit a transfer by him of the remaining ten shares, on the ground of the indebtedness to the bank of two of the three other legatees. The permission of the bank that three-fourths of the stock should be so assigned was an assent by it to the severance of the title of the fourth legatee and notice that the remaining shares were his sole property. In an action against the bank for a refusal to permit such transfer it is error to reject evidence of an agreement between the legatees and the executor that the stock should be divided, the thirty shares so transferred and the re- maining ten retained for the fourth legatee until majority. See Action and Suit, Equity and the several heads of equitable rights and retnedies, BILLS AXD KOXES. I. THE POWER OP CORPORATIONS TO ISSUE OR DEAL IN BILLS AND NOTES. IL FORM AND VALIDITY. III. THE ISSUE AND TRANSFER OF BILLS AND NOTES BY AND TO CORPORATE OFFICERS. IV. MISCELLANEOUS. Payment of mbseriptions to stock in bills or notes, see Subscription. I. The Power of Corporations to Issue or Deal in Bills and ?(otes. In general —Craig v. Richmond, D. C.,I Phila., 33. Corporations possess, without special grant of authority, the power to issue negotiable instruments in matters within the sphere of their proper corporate action. Order bv Bresident on treasurer.— Ashland Banking Co. v. Centralia Saving Fund, 1880, C. P., Columbia, 1 Kulp, 38, 9 Luz Leg Reg., 41 A corporation not incorporated for purposes of trade and the nature of whose business does not raise a necessary implication that it should have power to put into circulation negotiable paper, has no such power. An order drawn by the president of such a corporation upon its treasurer for the payment ot specific sums of money to the payee therein named, is not a bill ot ex- change. __ -- Promissory notes of the nature of bank notes--Act of Mar. 22, 1817 -^aSn Coal a>. .. Megargel, 1846, 4 B.,324.. Acertificate in the nature of a due bill, but of the essential nature of a promissory ^ote, and printed in the form of a bank note, payable to A. or bearer, signed by the 60 BILLS AND NOTES. IPart I. president and treasurer oi a corporation and payable at the latter's office at a certain time after date, with interest, is within the Act of Mar. 22, 1817, ^ 2, inflicting a penalty on the issue of promissory notes etc. in the nature of bank notes by an unauthorized corjjoration. Same— Limitation of action— Act of April 12, 1828.— Allegheny City V. McClurkan, 1850, 2 H., 81. A suit against a corporation for issuing small notes prohibited by the Act of April 12, 1828 is not subiect to the provisions of the Act of Mar. 29, 1785, as to the time within which suits for the recov- ery of forfeitures upon any penal Act of Assembly may be brought ; the 20 per cent, recoverable under the Act of 1828, upon judgment for the plaintiff, is not a forfeiture incurred by the act of issuing the notes. Kedemption of " store orders " by notes— Act of April 21, 1849.— Reading Industrial Manufacturing Co. v. Graeff, 1870, 14 Sm., 395. The Act of April 21, 1849, prohibiting corporations irom issuing obligations not redeemable in coin, does not prohibit a corporation from redeeming monthly by its notes orders issued by it apon a merchant for the supply of provisions to its employfe. Such a mode of business is vnthin the proviso of the Act. Discount.— Bright V. The Banking Co., 1882, 3 Penny., 478. The dis- count of notes by a corporation authorized by statute to invest its capital in notes and to purchase and hold securities in payment of the debts due it, is not ultra vires. n. Form and Validity. See also III. Corporate seal. — ^Mechanics' Bank v. "West Philadelphia Railway' Co., 1878, C. P., 5 W. N. C, 290. The note of a corporation is valid without the corporate seal. Hopkins v. Railroad Co., 1842, 3 W. & S., 410. The note of a corporation, though, in its form of words, strictly negotiable, is a specialty if attested by the corporate seal ; and in an action upon it by an indorsee its consideration is open to inquiry. Corporate character of promissor— AfB.davit of defence. — Avil v. Bush, 1887, C. P., 19 W. N. C, 448. In an action against " A., trading as A. & Co. ," on a note signed ' 'A. , President, ' ' an affidavit of defence averring that A. was not the msier and that A. & Co. was a corporation for which was done the work for which the note was given, is sufficient. Signature by officer— Presumption. — Montour Iron Co. v. Coleman, 1856, 7 C, 80. In an action against a corporation upon a bill of exchange drawn upon, and accepted by "A. B., President of;" etc., the corporation is bound to put in an affidavit of defence. The record in such a case raises a necessary implication that the corporation is the real promissor. Batt V. Pennsylvania Globe Gas Light Co., 1886, C. P., 43 L. Int., 86. An acceptance by the treasurer of a corporation in his official capacity is within a rule of court providing that in any action upon a bill it shall not be neces- sary for a plaintiff who has filed a copy etc. to prove on the trial the ac- ceptance unless the defendant by affidavit etc. has denied the latter. The plaintiff is not bound to prove the treasurer's authority to accept unless the defendant has by affidavit denied it. Order by president on treasurer.— Ashland Banking Co. v. Centralia Saving Fund, 1880, C. P., Columbia, 1 Kulp, 38, 9 Luz. L^. Reg., 41. An order dravm by the president of a corporation which has no power to issne negotiable paper upon its treasurer for the payment of a specific sum of money to the payee therein named, is not a bill of exchange. Part /.] BILLS AND NOTES. 61 III. Tbe Issue and Transfer of Bills and Notes by and to Corporate Officers. See also II. Officers' power to bind corporation.— Mechanics' Bank v. West Phila- delphia Railway Co., 1878, C. P., 5 W. N. C, 290. The officers of a corpor- ation have an implieid power to is.sae notes. Dougherty v. Hunter, 1867, 4 Sm., 380. Where the president of a corpora- tion customarily acts as its husiness agent with its knowledge and without objection, m aki n g sales, settling accounts and collecting debts, and actual authority so to do may therefore be inferred, the corporation will be bound by the president's acceptance in extinguishment of a debt due the corpora- tion of a note made payable to the president in his individual name, without official designation, where the proceeds of the note go to the credit of the company. Officers' liability— Disclosure of principal's name.— Fisher v. Rhodes, I860, 4 Phila., 94, 17 L. Int., 228. The principle that when an agent dis- closes the name of his principal, he is not personally liable to the party with whom he deals, though he may give a note in his own name, applies to trans- actions by officers of corporations. Whether such a note was given and re- ceived as the note of the company, is a question for the jury. Corporation, when liable notwithstanding excess of authority. — Pittsburgh and Baltimore Coal Co. v. Allegheny National Bank, 1877, 34 L. Int., 313, 25 Pitts. L J., 18. Money received and used by a corporation upon the security of a note in the corporate name which is void by reason of want of authority in the officer who signed it, may be recovered from the corporation under the common counts. Officer's issue of note to himself. — ^Denlinger v. Monitor Oil Co., 1880, C. P., Venango, 28 Pitts. L. J., 212. One acting as president of a corpora- tion cannot without the consent of the corporation give a binding note in the name of the company to himself and others of the corporators. Judg- ment entered by virtue of a power of attorney in such a note will be stricken off at the instance of a corporator without whose consent the note was given. Director's purchase of accommodation note. — Holmes v. Paul, I860, 3 Gr., 299, 5 Clark, 461. A member of the board of directors of a corporation, one of its finance committee, may purchase a note given by an indi- vidual for the accommodation of the corporation, and recover against the maker, where he was not the agent of the company to sell the note. Same — ^Preference in insolvency. — ^Hopkins' Appeal, 1879, 9 Nor., 69. The officers and directors of an insolvent corporation cannot gain a prefer- ence over other creditors, of the corporation by executing notes of the corporation in their own fevor, obtaining judgment by default and issuing execution upon them. Such conduct of the officers is a constructive fraud ; and, moreover, under the Act of April 7, 1870, in such case distribution is to be made as in cases of insolvency. Note by directors for use of company— Contribution.— Slaymaker r. Gundacker, 1823, 10 S. & E., 74. If the directors of a corporation become the makers and indorsers of a note on which money is borrowed for, and ap- plied to the use of the company, they are mutually responsible to each other, and if one of them pays it, the others are liable to contribution. Indorsement by officer.— Seyfert v. Lowe, 1877, C. P., 4W. N. C. 560. Indorsement of a promissory note by an officer of a corporation in his official capacity does not render the indorser personally liable. Af&rmed in 7 W, N. C, 39. Evidence — Competency. — Maule ». Partridge, 1863, D. C, 3 Luz. Leg. Obs., 180, 5 Leg. & Ins. Rep., 66. The treasurer of a corporation who is the payee and indorser of a promissory note is a competent witness in a suit by the indorsee against the maker. 62 BILLS AND NOTES. — BONDS. IPart I. IV. miscellaneous. Note for stock— Illegal sale.— Iowa Gulch Mining Co. v. Work, 1883, C. P., 13 W. N. C, 47. In an action by a foreign corporation upon promissory notes given for its stock, an affidavit of defence setting fortli statutes of the State by which the plaintiff was incorporated, and alleging that the stock in question was sold in a manner and for a price prohibited by such statutes, is sufficient. Application of stock and dividends to payment of note due corpora- tion plaintiff— Witness— Competency. — Klopp v. Lebanon Valley Bank, 1861, 3 Wr., 489. in an action by a corporation upon a promissory note against the makers thereof one of the payees is not competent to prove that the payees and indorsers were the real debtors, although the object of such testimony be to show that the alleged real debtors held stock and accrued dividends in the plaintiflf corporation which the latter is bound to retain and apply in payment of the note. Nor, were the witness competent, could such an application be compelled. Action by corporation — ^Filing copy of charter. — ^Lancaster Bank v. McCall, 1844, D. C, 2 Clark, 498. In an action by a corporation on a promissory note it is not necessary that a copy of the charter should be filed to entitle theplaintlStojudgmentfor want ofasufficientaffidavitof defence. BOARD OF DIRECTORS- See Directors. BONA FIDES. See Fraud, Directors. Of holders and transferees of stock, see Stock and Stockholders. Of corporation in permitting transfers of stock and paying dividends, see Id. Of corporation in exercising right of eminent domain, see Eminent Domain. In construction of corporate works, see Subscription. In organization of corporation, see Charter. BOXDS. I. POWER OF CORPORATIONS TO ISSUE BONDS— VALIDITY ETC. II. RIGHTS AND LIABILITIES OP HOLDERS OF CORPORATE BOND& III. SUITS UPON CORPORATE BONDS. IV. OFFICIAL BONDS. V. MISCELLANEOUS. See also Seal. Bonds to secure damages for corporation's entry on land, see Eminent Domain. Municipal bonds issued in aid of private corporations, see Subscription. Bond of indemnity for rejecting corporator's vote, see Elections. Taxation of corporate bonds, see Taxation. ■P<"^ ^1 BONDS. (J3 I. ro-wer of Corporations to Issue Bonds- Validity etc. See also Mortgages : as to the general power to borrow money, see Powers of Corp- orations. Limitations of power to increase indebtedness, see Debts, Constitutional Law. Issue of irredeemable bonds at discount— Usury— Deferred stock.— Philadelphia & Reading Railroad Co. v. Stichter, 1882, 11 W. N. C, 325, 29 Pitts. L. J., 379. A corporation may, under a general power to borrow money, issue irredeemable bonds, at a large discount, not entitled to inter- est until after the common stock had received a dividend of six per cent., then to take aU the revenues of the corporation up to six per cent., and then to rank vrith the common stock. Such a method of borrowing cannot he objected to on the ground that it is nsurious or that it is an issuing of deferred stock. See contra McCalmont v. Philadelphia & Reading Railroad C!o.. 1881 V S C. C, 10 W. N. C, 338. ' Kemble v. Wilmington & Northern R. Co., 1878, U. S. C. C, 13 Phila,, 469, 35 L. Int., 165. The Act of April 8, 1861, does not authorize a railroad company to issue bonds to its stockholdeis in proportion to their interests. It authorizes such an issue only for a new, valuable, adequate consideration, increasing the available funds of the corporation. Presumption of lawfulness and regularity.— McMastersu. Reed, 1854, 1 Gr. , 36. Bonds issued by a corporation having a grant of the ordinary corp- orate powers, like notes given by one partner in the name of the firm, will be intended to have been given for some legitimate object until the contrary appears. There is no presumption against them. Parkinson v. Parker, 1877, 4 Nor., 313. The seal of a corporation to a bond is prima facie evidence that the corporation duly authorized its execu- tion. See also Berks & Dauphin Turnpike Co. v. Myers, 1820, 6 8. & R., 16. IlUunction by creditor. — Erie Railroad Co. v. Wilkes-Barre Coal & Iron Co., 1872, D. C, 9 Phila., 262, 29 L. Int., 116. A corporation will not be enjoined from issuing its bonds upon complaint of a creditor holding no lien or other legal claim ux>on its property. Ultra vires mortgage. — Phila. & Sunbury Railroad Co. v. Lewis, 1859, 9 C, 33. A corporation is liable upon its bonds, lawfully issued for an end within the purposes of its creation, notwithstanding that the corporation had no authority to execute the mortgages by which such bonds are secured. Failure to deliver mortgage. — McCnrdy's Appeal, 1870, 15 Sm., 290. A mortgage executed to a trustee under the authority of directors alone, under which bonds have been issued and sold, upon which bonds interest has been paid and to which a sequestrator has paid dividends, is valid, when duly executed, acknowledged and recorded, although never in the manual possession of the trustee. II. Rigrlits and Liabilities of Holders of Corporate Bonds. See also as to the right to maintain action or suit, IIL See also Mortgage, Beeeivers, Creditors. Impairment of obligation of contract— Presuming assent.— Gllfillan V. Union Canal Co., C. P., 1879, 7 W. N. C, 179. The obligation of a con- tract between a corporation and its bondholder is as much within the pro- 64 BONDS. IPart J. teetion of the Constitution as is that of any other contract. Legislation to the effect that a bondholder shall be presumed to have assented to a pro- XKised modification of his rights, il within a certain time after such modifica- tion he does not dissent from it, is inyalid. Title of holder.— Mason ». Frick, 1884, 9 Out., 162. Corporation coupon bonds payable to bearer possess the incidents of negotiable paper ; bona fide purchasers for value take a title unaffected by want of title in the vendor. See also Philadelphia & Reading Eailroad Co. v. Smith, 1884, 9 Out., 195; Philadelphia & Eeading Eailroad Co. v. Fidelity Trust Co., 1884, 9 Out., 216. Carpenter v. Eommel, 1862, D. C, 5 Phila., 34, 19 L. Int., 148. Corpora- tion bonds payable to bearer are so far negotiable that a bona fide holder for value takes a good title to them as against an intermediate owner irom. whom they were stolen. Right to sell — ^IiyuilCtion. — Justice v. Stroup, C. P., 1861, 4 Phila., 346, 18 L. Int., 109. The negotiation by a bona fide purchaser for value of corp- oration bonds payable to bearer which are capable of passing by delivery, will not be restrained by injunction. Conversion into stock. — ^Muhlenberg v. Phila. & Eeading Eailroad Co., 1864, 11 Wr., 16. Where the bond of a corporation is by its terms convert- ible into stock within a certain time, an agreement to extend the time for the payment of the bond does not carry with it the right of conversion into stock after the time originally limited therefor. Brown v. Lehigh Coal & Navigation Co., 1865, 13 "Wr., 270. Construction of special contract that scripholders of a corporation might on certain terms become shareholders. Sale of mortgaged property. — Ashhurst v. Montour Iron Co., 1860, 11 C, 30. The Pennsylvania courts have no jurisdiction as courts of equity to decree, at the suit of the mortgagee-trustees of the bondholders, a sale of the property mortgaged by a corporation to secure its bonds. Eemedied by Act of May 5, 1876, P. L., 123. Appointment of receiver. — McGeorge v. Hancock Steel & Iron Co., 1875, C. P., Montour, 11 Phila., 602, 32 L. Int., 372. The appointment of a receiver of the property of a corporation is a matter within the sound dis- cretion of the court, and will be made whenever it is required for the pro- tection of its creditors by mortgage. See further Eegeiveb. function— Corporation's illegal act.— Ashton & Lehigh Coal & Navi- gation Co., 1865, 13 Wr., 261. The loanholders of a corporation are not entitled to an injunction to restrain the corporation from doing an act which is not illegal and which cannot impair the security of their obligations or X>08tpone their payment beyond the stipulated period. Reorganization— Formation of new company.— Walker v. Whelan, 1861, 4 Phila., 389, 18 L. Int., 236. Where an agreement is made among certain bondholders of an insolvent corporation to purchase the property at a judicial sale "for the benefit of all ' ' the bondholders of that class, and to then transfer it to a new company, all of the bondholders of that class are entitled to a proportionate share of the bonds of the new company to which it is transferred. Buckley D. Union Canal Co., 1858, 3 Phila., 152, 15 L. Int., 212. Where a minority of the bondholders of a quasi-public corporation have stood by and seen the majority bind themselves to a scheme of finance which promised best for all parties, they cannot have an injunction to restrain the carrying out of the proposed arrangement ; their sqle remedy is the legal one upon the mortgage. Catawissa Eailroad Co. v. Titus, 1865, 13 Wr., 277. Construction of special contract between bondholders of an insolvent corporation under which a new company was organized, "the expenses of carrying out the agreement to he borne by the new company." Part /.] BONDS. 65 i^^®®®^o^*^^*°^ payment.— Williamsport Gas Co. v. Pinkerton, 1880, 14 Nor., 62. The holder of a coupon bond of a corporation is under no obligation to present the bond or its coupons for payment within a reasonable time. Same— Interest.— Emlen v. Lehigh Coal & Navigation Co., 1864, 11 Wr., 76. Where the loans of a corporation are payable at a fixed time and place, and opportunity is afforded for so obtaining payment, interest thereon ceases at such time, -whether the evidence of indebtedness was then and there presented or not. It is not necessary that the amount of the loan and interest should be set apart especially for the purpose at the time for pav- ment, if it can be shown that the company had sufficient funds on hand. " Interest on coupons.— Philadelphia & Beading E. Co. v. Smith, 1884, 9 Outer., 195. Interest may be recovered upon the coupons of corporation bonds from the time when such coupons became due. See also Moody v Phila. & Beading B. Co., 1883, 13 W. N. C, 48, 40 L. Int., 170 ; Fltchett v. ^^""^^J^^^- ^- <^-' 1^^3' ^ '^^^■■' 132, 20 L. Int., 37 ; Heller^). Scranton, 1862, C. P., Luzerne, 2 Luz. Le^. Obs., 353. Application of purchase-money.- Phila. & Sunbury Eailroad Co. V. Lewis, 1859, 9 C, 33. It is no defence to an action on the bonds of a corp- oration, that the corporation's books do not show what has become of the proceeds or that any value had been received for them. The purchaser is not bound to look to the application of the purchase money. III. Suits Upon Corporate Bonds. See also, as to defences, II; as to suits upon guaranties of corporate bonds, V. Holder's right to sue.— Fox v. The Iron Co., 1860, D. C, 17 L. Int., 149. The bona fide purchaser for value of a coupon bond of a corporation takes it with the right to sue in his own name, free from all equities which may have arisen against the previous holder and with no obligation to see that the money is applied to the purposes of the corporation. See also Carr v LeFevre, 1856, 3 C, 413. See also II. Same— Obligee named, or assigns.— Bunting v. Camden & Atlantic Baib-oad Co., 1876, 31 Sm., 254. Corporation bonas payable to an obligee named, or his assigns, are not assignable under the act of 1715, so as to en- able the assignee to sue in his own name. Same — Overdue coupons and warrants— Interest.— Philadelphia. & Eaading Eailroad Co. v. Smith, 1884, 9 Out., 195. The holder of overdue interest coupons and interest warrants, whether attached to, or severed from bonds issued by corporations, payable to bearer, may maintain an action thereon against the corporation, and may recover interest on the amount of such coupons and warrants from the time when they became due and pay- able. See also Philadelphia & Beading Eailroad Co. v. Fidelity Trust Co., 1884, 9 Out., 216. Moody?;. Philadelphia & Beading Eailroad Co., 1883, C. P., 13 W. N. C, 48, 40 L. Int., 170. When the interest coupons of corporate bonds are in such form as to constitute distinct causes of action, interest may be recovered upon them in an action of debt upon the bonds after the latter are due, though the coupons have never been detached. Holder's right to sue instead of pursuing remedy provided in trust mortgage. — Montgomery County Agricultural Society v. Francis, 1883, 7 Out., 378. An action will lie by a single holder of the bonds of a corpora- tion for interest due upon his bonds notwithstanding that the trust mort- gage securing the bond provides that in default of payment of such interest or the principal, the trustees shall, at the written request of holders of such 5 — ^MUEPHY. 66 BONDS. IPart I. bonds to an amonnt not less than a specified sum, proceed by scire facias to collect the interest and principal of said bonds for distribution pro rata. Such stipulation in the mortgage does not make the specified proceeding the only remedy. See also Phila. & Baltimore Eailroad Co. v. Johnson, infra. Suits upon coupons— Filing copyof bond.— Philadelphia & Reading Bailroad Co. v. Fidelity Trust Co., 1^4, 9 Out., 216. In an action against a corporation to recover the amount of interest upon its bonds for which the plaintiff holds warrants or coupons, it is not necessary to file a copy of the bonds to which the coupons have been attached. Copeland v. Iron Co., 1879, C. P., 36 L. Int., 202. In a suit upon coupons of corporation bonds, payable to bearer, copies of the bonds from which the coupons were detached need not be filed in order to entitle the holder to judgment for want of a sufficient affidavit of defence. See also Wain v. Huntingdon & Broad Top E. Co., 1883, C. P., 40 L. Int., 190. Same — ^Limitation. — Philaedlphia & Eeading Bailroad Co. v. Fidelity Trust Co., 1884, 9 Out., 216. The six-year statute of limitations does not run against a claim for the amount due upon coupons of corporation bonds. See also Wain v. Huntingdon & Broad Top R. Co., 1883, C. P., 40 L. Int., 190. Same — ^Affidavit of defence. — Philadelphia & Reading E. Co. V. Fidel- ity Trust Co., 1884, 9 Out., 216. The interest coupons of corporation bonds are instruments of writing within the Affidavit of Defence Law. Same— Counsel fees— Act of May 3, 1866.— North Penn. Railroad Co. V. Adams, 1867, 4 Sm., 94. The Act of May 3, 1866, requiring corporations to pay counsel fees of plaintifts in suits against them, is not applicable to an action brought to recover the amount of coupons unpaid for want of funds, where the company subsequently offered to pay the amount of the coupons without interest, and the suit was defended on the ground that the coupons had not been presented for payment. Provision in mortgage not affecting bondholder's remedy for breacb. — Phila. & Baltimore E. Co, v. Johnson, 1867, 4 Sm., 127. Where a cor- poration issues bonds secured by a mortgage and with interest coupons at- tached, and agrees that upon three successive defaults in payment of interest the principal shall become due, a provision in the mortgage that the trustees thereof shall sell the mortgaged property at the request of the holders of a certain amount of the bonds is no defence to a suit on the bonds after a breach in their conditions. Evidence — ^Riile of Walton v. Shelley. — Columbia Coal & Iron Co. ». Fox, 1859, 16 L. Int., 204. The coupons of corporation bonds are not within the rule of Walton v, Shelley. IV. Official Bonds. See also Officers. Failure of principal to sign.— Bank of Northern Liberties v. Cresson, 1824, 12 S. & E., 306. Where the act under which a corporation is char- tered makes it the duty of the board of directors to take from the corporate officers such bond for the faithful performance of their duties as the by-laws may prescribe, and a by-law is passed directing that a certain officer shall give bond in a certain sum with one or more sureties etc., a bond given by two sureties alone without including the principal as one of the obligors is binding upon the sureties and will support an action thereupon against the latter. Forfeiture of charter and subseauent revival. — Bank of Washington V. Barrington, 1830, 2 P. & W., 27. Where the charter of a corporation is forfeited, but subsequently by act of the Legislature " revived and continued Partl.'^ BONDS. 67 in as full force and ample a manner as if no forfeiture had taken place," the sureties upon the bond of an agent or oflScer of the corporation, given before the forfeiture, are discharged by the latter, and cannot be held liable for any default of their principal occurring alter the corporation is revived. Where in such case the forfeiture was produced by the omission of an act ■which it was the principal's duty to perform, the sureties are liable for the loss accruing from such forfeiture, but their liability is limited to that loss alone. Action upon,— Set-off.— Fields v. Kershaw, 1880, C. P., Delaware, 1 Del. Co., 103, 13 Lane. B., 68. The treasurer of a corporation cannot, nor can his sureties, in an action on the bond given for the faithful performance of his official duties. Bet off a claim due him as a corporator by the company. V. niscellaneous. Apportionment of interest^— Wilson's Appeal, 1885, 43 L. Int., 395. Interest upon the bonds of municipal and other corporations is apportion- able. Guaranty of bonds of another corporation — ^Notice — Evidence. — Coxe V. Camden & Atlantic E. Co., 1885, C. P., 42 L. Int., 151. What Js sufficient evidence upon which to submit to a jury the question whether the stockholders of a defendant railroad company had binding knowledge of the company's guaranty of the interest upon bonds of a leased road. Affirmed, 18 W. N. C, 20. Same— Judicial notice— ^Affidavit of defence. — ^Timlow v. Phila. & Reading R. Co., 1882, 39 L. Int., 280. An act of Assembly which does no more than authorize one private corporation to guarantee the bonds of another is a private act, of which the court will not take judicial notice upon the hearing of a rule for judgment for want of a sufficient affidavit of defence. Pennypacker v. Camden & Atlantic R. Co., 1883, 3 Penny., 402. In order to entitle a plaintiff in an action against a corporation upon its guaranty of the bonds of another corporation to a judgment for want of a sufficient affidavit of defence, the facts authorizing such a guaranty must be averred in the statement of the plaintiff's claim. Guaranty of coupons. — Camden & Atlantic E. Co. v. Pennypacker, 1885, 42 L. Int., 395. The indorsed guaranty of one railroad company upon the coupons attached to the bonds of another is not an instrument vnthin the Affidavit of Defence Law: reversing 14 W. N. C, 158. Faymentiin bonds — Stockholder's laches.— Lipton v. Bald Eagle Plank Road Co., 1860, 17 L. Int., 365. If a stockholder wishes to complain that a part of the purchase price of the company's stock sold by itself was paid in the vendee's bonds instead of in cash, he should complain vrithin six years after the consummation of the sale. Taxpayers' bill to compel cancellation of municipal bonds. — ^Mc- Cowan V. New Castle & Darlington Railroad Co., 1858, 6 Pitts. L. J., 5. In equity proceedings by tax- payers of a municipality to compel a corporation to surrender for cancellation bonds of the municipality, in re-exchange for stock of the corporation held by the municipality, the latter must be made a party. Assignment by officer of bond payable to corporation— Bona fides- Notice. — Garrard v. Pittsburg & Connellsville Railroad Co., 1857, 5 C, 154. A party receiving from the president of a corporation, as collateral security for an antecedent individual debt owing to him by such president, a bond payable to the corporation, indorsed with a blank assignment the language of which imports the authority of the directors and therefore that an assign- ment is to be made by the president only for the purposes of the company, 68 BONDS. — BOOKS AND EECOEDS. [Pdrt /. is not a bona fide holder without notice. The general rule is that the posses- sion of the securities of a corporation by its chief officer, is the possession of the corporation : affirming 1 Cramrine, 378. See also Pittsburg & ConneUs- Tille Eailroad Co. v. Barker, 1857, 5 C, 160. Statutory bond to corporation. — ^Informality in, — ^Action on, — Green- field V. Yeates, 1828, 2 E., 157. Where a bond is required by statute to be taken by a corporation, but no form is prescribed, a bond which conforms in substance to the requirements of the statute is good although taken in the names of individual members as obligees. Such a bond may be sued upon in the individual names of the latter to the use of the corporation, notwithstanding that it contained no mention of their successors in office. BO?flJS. See as to tonus taxes, Taxation. Bonus for subscribing for stock.. — Pittsburgh & ConneUsviUe Bailroad Co. V. Allegheny, 1869, 13 Sm., 126. A corporation may, under a special legislative authorization, pay a bonus or premium to induce a particular subscription to its stock, e. g. , in the case of a municipal subscription, by contracting to pay to the municipality or its creditors a sum equal to the iur terest on the bonds issued by the municipality in payment of the subscrip- tion. But such a contract will not be sustained where the special legislative authority is wanting. See Pittsburgh & Stenbenville Raibroad Co. v. Alle- gheny, 1875, 29 Sm., 210. Pittsburgh & Connellsville Eailroad Co. v. Allegheny, 1869, 13 Sm., 126. An execution sale of corporation stock passes to the purchaser merely the stock, and not the right to interest thereupon payable, under a special con- tract, to the previous holder as a bonus or premium for subscribing. BOOKS XXO RECORDS OF CORPORATIONS. As evidence, see Evidence. Transfer of stock upon, see Stock and Stockholders. Subscription book, see Subscription. The right"Of inspection.— Comm. ■». Phoenix Iron Co., 1884, 9 Out., 111. A stockholder in a private corporation who is denied access to the corporate records and information as to corporate affairs, may have a mandamus to compel the production of such books and papers as are essential to enable him to obtain the requisite information upon which to found a proposed equity suit against the corporation for the assertion of his rights as a stock- holder : reversing 13 W. N. C, 177. See also s. c, Phoenix Iron Co. v. Sellers, 1886, 43 L. Int., 500, 18 W. N. C, 250. Comm. V. Coit, 1884, C. P., 15 W. N. C, 270. A writ of mandamus will lie to compel the officers of a corporation to permit a director to have free access to the corporation's books and papers in order that he may properly fulfil his duties as a director. In such writ the corporation must be joined as a defendant ; but its non-joinder is no ground for quashing the writ ; leave will be given to amend. Palsification.— Comm. v. Beamish, 1876, 31 Sm., 389. A school district is merely a quasi-corporation. It is not a "body corporate " within the meaning of Section 118 of the Act of March 31, 1860, relating to the falsifica- tion of papers etc. by directors of bodies corporate. Part /.] BOEEOWING MONEY. — BY-LAWS AND CONSTITUTION. See Powers of Corporations. B01JKDAR.IES. Of land appropriated under the right of eminent domain, see Eminent Domain. BREACH. Of contract, sef Contract. Of conditions of subscription, see Subscription. BRIDGES. See Roads and Highways. Dviy of corporations to build and repair, see Eminent Domain. BVII^DIXGS. Of corporations, see Taxation. BVRDEX OF PROOF. See Ettidenee. BUSINESS. Of corporations : place of, see Service, Quo Warranto, Jurisdiction, Foreign Cor- porations; insufficient statement of, in application for charter, see Creation of CorporaMons; as determining character of corporation, see Kinds of Corpora- tions Creation of Corporations, Charier, Taxation ; failwre to carry on busi- ness see Charier; duty of corporation to perform services impartially, see Liabilities and Duties of Corporations; injimction to restrain discontinuance of huiAnes', see Injunction. See also Powers of Corporations, Consolidation. Damage to indimduaVs business from construction of corporate works, see Eminent Domain. BV-I^AWS AND CONSTITUTION. I. THE ENACTMENT OP BY-LAWS-THEIE VALIDITY ETC. 11. INTEEPEETATION OF BY-LAWS. III. MISCELLANEOUS. 70 BY-LAWS AND CONSTITUTION. [Part I I. Tlie Enactment of By-La-ws -Xbelr Validity etc. Directors cannot enact. — United Fire Association v. Benseman, 1877, 4 W. N. C, 1, 25 Ktts. L. J., 9. The directors of a corporation have no power to make, amend or repeal by-laws of the corporation unless such right is specially conferred by the charter. By-law as evidence — ^Proof of enactment. — Comm. v. Woelper, 1817, 3 S. & R., 28. Where there is nothing on the minutes of a meeting at which a by-law was passed to induce suspicion that it was not regular, such by- law may be given in evidence, in a dispute between members, without pre- vious proof of its due enactment according to the charter. How scope of by-laws must appear in proposed charter.— Supreme Temple, Order of Plato, 1885, C. P., 42 L. Int., 444. The powers asked for by a proposed charter must be precisely and accurately defined in the charter iteelf. They cannot be left to be determined by the form of constitution which the corporation may afterward adopt. Stevedore's Association, 1880, C. P., 14 Phila., 130, 37 L. Int., 262. A charter offered for the approval of the court should not contain provisions for the internal management of the corporation which are properly the subjects of by-laws. Red Men's Association, 1875, C. P., Crawford, 10 PhUa., 546, 31 L. Int., 254. The document presented for examination by the court upon applica- tion for a charter should not consist of the association's proposed by-laws. Phila. Artisans' Assn., 1871, C. P., 8Phna., 229, 28L. Int., 13. A charter will not be granted where the rights and duties of members, the powers and functions of the officers, the causes and manner of effecting expulsion or the mode in which the property of the corporation is to be disposed of are left to be determined by the by-laws. See also cases infra generally. St. Paul's School Association, 1879, C. P., Schuylkill, 1 Schuylk. Leg. Rec, 133. The proposed charter of a corporation ol the first class under the Act of 1874 need contain no provision for amendment or the enactment of by-laws. Same— Provision as to consistency with law etc. — German Beneficial Assn., 1858, 6 C, 155. The article giving the power of making by-laws must provide that they shall not be inconsistent with the Constitution and laws of the United States or of this State, or with the provisions of the charter. See also Butchers' Beneficial Assn., 1860, 11 C., 151 ; National Literary Assn., 1858, 6 C, 150. Comm 11. Gill, 1837, 3 Whart., 228. A by-law inconsistent with the charter of a corporation is void. See also Granger v. Grubb, 1870, C. P., 7 Phila., 350, 27 L. Int., 125 ; Raynor v. Beatty, 1880, C. P., 9 W. N. C, 201. Same— Compliance with intention of testator.— Foulke and Long In- stitute, 1884, C. P., 41 L. Int., 488. A charter for a proposed corporation to be founded under the provisions of a vrill which appoints the character of its constitution, will not be approved if it contains provisions inconsistent with the intention of the testator. Affirmed in Vaux's Appeal, 13 Out., By-law in conflict with corporation's constitution.— Booz's Appeal, 1885, 13 Out., 592. The privileges and powers of a corporation formed under a general law are to be sought for in the statute rather than in the articles of association. When articles of association contain a provision in- consistent VTith the statutory provision upon the same subject matter, the corporation may, in due form, pass a valid resolution or by-law in conflict with such provision of its constitution but in harmony with the statutory provision. A foHiori is this tine when the by-law by which the corporation accommodates itself to the provisions of the general law contains nothing expressly prohibited by the terms ot the articles of association Part Z] BY-LAWS AND CONSTITUTION. 71 By-laws relating to membership — " Contributing " members.— Dili- gent Fire Co. v. Comm., 1874, 25 Sm., 291. Where a charter provides that the corporation may bestow honorary membership upon active members, a by-law authorizing the election of "contributing" members in the same manner as active members is void. Same— Market Company — Eeasonableness.—Haghes v. Farmers' Association, 1852, D. C, 9 L. Int., 50. In a corporation of agriculturists incorjKjrated for the purpose of establishing a market, a by-law providing that the sellers in the market should be confined to the number who brought there the produce of thesr own ^irms, is not unreasonable. Same — Savings society. — Philadelphia Savings Institution, 1836, 1 Whart., 461. Where the professed object of a corporation is of a quasi-char- itable character, as in the case of a savings fund institution, the stockhold- ers are not, as such, members of the corporation, even where the charter is silent ; a fortiori, where the charter contains a necessary implication that the members shall consist of those whom the directors see fit to admit. Under such circumstances a by-law providing that every member who shall cease to be a stockholder shall cease to be a member is of no effect. Comm V. Gill, 1837, 3 Whart., 228. Where a corporation is in the nature of a charity, as in the case of a savings institution, intended for the benefit of the dejwsitors, and the charter is to be construed as providing that the stockholders are not, as such, entitled to participate in its management, a by-law passed by the directors, declaring that every stockholder shall be a member of the corporation and upon a transfer of such stock shall cease to be a member, is void notwithstanding that the directors are empowered by the charter to " provide for the admission " of members ; or, if the power of the directors to elect members be conceded, such a by-law is not a proper ex- ercise thereof. Disfranchisement. — Comm. v. St. Pratiek Society, 1810, 2 Binn, 440. Without an express power in the charter, a member of a corporation cannot be disfranchised unless he has been guilty of some offence which either affects the interest or good government of the corporation or is indictable by the law of the land ; a by-law imposing the penalty of expulsion for vilifying a co-member in a private quarrel without disturb- ing the decorum of the corporation, is not necessary for the good govern- ment of the corporation, and is void. Evans v. Philadelphia Club, 1865, 14 Wr., 107. Though the power to make by-laws is incidental to a corporation, by-laws which vest in a major- ity the power of expulsion for minor offences are, so far, void, and expulsions under them will not be sustained. Society for Visitation of the Sick etc. v. Comm., 1866, 2 Sm., 125. Where a charter confers the power of expulsion and requires a candidate for mem- bership to sign the constitution and by-laws as a condition of membership, the provisions of the by-laws as to the causes for expulsion are binding upon such member and their fitness is not the subject of judicial inquiry. Corporate elections.— Comm v. Woelper, 1817, 3 S. & E., 28. Where a charter gives the corporation power to make rules, by-laws and ordinances and to do everything needfnl for the good government of the congregation,' a by-law authorizing the president to appoint inspectors of election and another providing that, "if, beside the names, there are other things upon the tickets or if two or more tickets are found together, such tickets shall not be counted," are legal ; the engraving of an eagle upon such tickets is a violation of the latter by-law. . , , ™ ., „„ „„ x t ^ Eaynor«. Beatty. 1880, C. P., 9W. N. C, 201, 14 Phila., 80, 37 L. Int., 298 By-laws imposing new or additional qualifications for voting at cor- Dorate elections, beyond those prescribed by the charter, are void. WiL^n. AcLiemy of Music, 1886, C. P., 43 L. Int., 86, 2 C. C. E., 280. Under authority to adopt such by-laws as may be expedient for the well- being of the corporation, a by-law may be passed providing that a stock vote 72 BY-LAWS AND CONSTITUTIOlf . IPart I. may be ordered at any annual, adjourned or special meeting of the stock- holders when demanded over the signatures of ten stockholders upon any question proposed in writing and duly seconded. Same— Proxies.— Comm. v. Coxe, 1873, C. P., Schuylkill, 1 Leg. Chron. E., 89. The right of voting by proxy cannot be abridged by a by-law passed by the board of directors without the knowledge or consent of the stockholders, imposing upon it conditions not required by the charter. Wilson V. Academy of Music, 1886, C. P., 43 L. Int., 86, 2 C. C. E., 280. "Where a charter gives to stockholders the right of voting by proxy at the or- ganization of the corporation it will be presumed that the stockholders may so vote at all subsequent elections, notwithstanding that a subsequent clause of the charter, providing for the mode of holding and conducting the annual elections, is silent upon the subject of proxies. The power also will be im- plied to vote by proxy "at all meetings when a stock vote has been ordered." Under authority to adopt such by-laws as may be deemed expedient for the wellbeing of the corporation, the directors may validly adopt by-laws to effectnate these implied powers. Lien upon stock for holder's indebtedness.— Morgan ». Bank of North America, 1822, 8 S. & E., 73. A by-law or a usage of a corporation forbid- ding the transfer of stock by a holder indebted to the corporation is valid as against a stockholder to whom such a usage was known and against his vol- untary assignee lor creditors. Geyeru Insurance Co., 1867, D. C, Allegheny, 3 Cmm., 41, 14 Pitts. L. J., 266. A charter provision that the company's stock shall be assignable and transferable on the books of the company " according to such rules and by-laws, and subject to such restrictions and limitations as the stockholders may esteblish ' ' is sufficient authority for a by-law providing that no such transfer shall be permitted while the owner of the stock is indebted to the company. Such a by-law does not require express authorization in the charter. Arbitration of disputes with fellow-members. — McMabon v. Associa^ tion, 1885, C. P., 42 L. Int., 151. A member of a corporation or society is not precluded from resorting to the courts by a by-law providing that, "dis- putes between the association and any of its. members shall be decided by arbitration in lieu of legal preceedings." Sweeney v. Beneficial Society, 1884, C. P., 14 W. N. C, 466, 486. A by- law compelling an aggrieved member to submit to arbitration within the society is invalid, and a violation of it by resort to the civil courts is not a valid ground for expulsion. Seats in board of brokers. — Thompson v. Adams, 1880, 12 Nor., 55. A by-law of a board of brokers providing that the proceeds of a sale of the seat of a deceased member shall be applied in the first instance to payment of the debts of the deceased to members of the board, is valid : affirming 4 W. N. C, 445. Singerly v. Johnson, 1874, C. P. 1 W. N. C, II, Ibid., 122. A by-law of a board of brokers providing that upon the death of a member his seat shall be sold and the proceeds first applied to the claims of members upon stock contracts, is valid. Impairment of obligation of contract.— Insurance Co. v. Connor, 1851, 5 H., 136. A corporator may enter into an independent contract with the corporation additional to the contracts involved in his membership, and his rights under such independent contract will be as fully protected as those of a stranger. His rights under it cannot be forfeited through the subsequent imposition of new obligations by the passage of by-laws to which he does not consent, nor can other remedies for enforcing it against him be resorted to than those existing at the time of its formation. See also Bradfield v. Ins. Co., 1880, C. P., Montgomery, 9 "W. N. C, 436; Orangeville Loan Assn. v. Young, 1880, C. P., Columbia, 9 W. N. C, 251, 37 L. Int., 475, 14 PhUa., 624. Part /. j BY-LAWS AND CONSTITUTION. 73 Eeasonableness.— Granger ». Grnbb, 1870, C. P., 7 PMla., 350, 27 L. Int. , 125. A by-law must be reasonable. See also Phila. v. Empire Rwy. Co., 1869, C. P., 3 Brewst., 570, 7 Phila, 321. HibemiaFire Engine Co. v. Comm., 1880, 12 Nor., 264. Whether or not a by-law is reasonable, is a question for the court. But its unreasonableness most be demonstrably shown. Same — ^Increase of dues. — Hibemia Fire Engine Co. V. Comm., 1880, 12 Nor., 264. A by-law which increases the dues payable by members when there is no necessity whatever for such increase is iinreasonable. Same— Library company. — Granger v. Grubb, 1870, C. P., 7 Phila., 350, 27 L. Int., 125. A by-law of an incorporated library company providing that the library shall be closed one day out of seven is not unreasonable ; nor is it in conflict with the laws of Pennsylvania or of the United States. See also Hughes v. Farmers' Assn, I, gupra. II. Interpretation of By-La-ws. Interpretation by corporation in rules and regulations.— Supreme Lodge, Knights of Honor, v. Martin, 1883, C. P., 13 W. N. C, 160. Rules and regulations made by a corporation to carry into eflect the provisions of its charter, when not in violation of the laws of the Commonwealth, are to be recognized in judicial proceedings as authoritative interpretations of the constitution binding upon the members. President's authority.— Twelfth Street Market Co. V. Jackson, 1883, 6 Out., 269. Where a by-law gives to the president of a corporation "the general charge and direction of the business of the company as well as all matters connected with the interests and objects of the corporation," that does not include the authority to do an act which by another by-law is ex- pressly given to a standing committee : reversing 12 W. N. C, 190, 39 L. Int., 383. President's power of attorney to commence suit.— Citizens' Bank v. Keim, 1875, 10 Phila., 311, 1 W. N. C, 263. Where a by-law of a bank provides that the president shall have under his supervision all debts which may remain due and unpaid, and recommend to the board of directors such proceedings as shall be requisite for their settlement, the power to institute and control proceedings for the collection of such debts is impliedly reserved to the directors, and the president cannot, on his own authority, give a power of attorney to commence suit. Disfranchisement. — Comm. v. Guardians of The Poor, 1821, 6 S. & E., 468. Where a by-law provides that no member shall be expelled by a less number than two-thirds of those present nor without notice and an opportunity to defend himself from the charges preferred, the failure of a motion of condemnation, after such hearing, to receive a two-thirds vote, is an acquittal, and a subsequent two-thirds vote of expulsion is invalid. III. miscellaneous. Proceedings on by-law. — Commissioners of Southwark v. Neil, 1800, 3 Y., 54. In proceedings on a by-law it must appear that the special authority conferred by the charter was strictly pursued. Constructive notice of by-law.— Tete v. The Bank, 1869, C. P., 4 Brewst., 308, 26 L. Int., 157. Stockholders are affected with constructive notice of the by-laws of their corporation. Eesolution in lieu of by-law.— Bank of Kentucky v. Schuylkill Bank, 1846. C. P., 1 Parsons, 180. Where a charter authorizes the transfer of stock at such places as the president and directors shall by their by-laws 74 BY-LAWS AND CONSTITUTION.— CAPITAL STOCK. [Parti. prescribe, and the president and directors pass a by-law providing that the stock shall be transferable at A. and "in other places where the bank shall appoint agents " for the purpose, a resolution of the president and directors, establishing such an agency at a particular place, is a valid exercise of the authority conferred by the charter and by-law. Affirmed by Supreme Court. Act prohibited by by-law — ^TTsage. — Chambersbnrg Ins. Co. -o. Smith, 1849, 1 J., 120. Where supervision of the transfer of stock has, by their uniform practice, been entrusted by the directors of a corporation to the sec- retary, and such practice thereby becomes a tacitly adopted rule of the com- pany, of which the public has notice and upon which the public acts, a transfer permitted by such officer is binding upon the corporation notwith- standing that an unenforced by-law might be construed as prohibiting it. Illegal by-law— Obligation of contract.— Orangeville Loan Association V. Young, 1880, C. P., Columbia, 9 W. N. C, 251, 14 Phila., 624, 37 L. Int., 475. The mere fact that a corporation has adopted an illegal by-law relating to a general class of contracts between it and its members, does not absolve fiom his obligations a member indebted to it upon a contract of that class, where that particular contract was not affected by the objectionable by-law. CALIFS. For instalments of stock, see Stock and Stockholders. ca?9ce;iened before the passE^e of the Act of June 13, 1883, that Act could not prevent such forfeiture ; it applied only to corporations in existence at its date. Same — Waiver by extension of time. — Comm. v. Pittsburgh, 1861, 5 Wr., 278. Where a railroad charter provides that the charter shall be null and void unless the construction of the road be commenced within a certain period, the right to enforce that condition is waived by the State by the pass- age of a supplementary act extending the time ; and subscriptions made ^er the expiration of the time originally limited are valid. Irregularity in incorporation— Waiver by Commonwealth.— Comm. V. Westchester Railroad Co., 1855, 3 Gr., 200. No form of words is necessary to create a corporation ; it may be created by implication from the grant of corporate powers and privileges by statutes subsequent to an Original in- corporation which may not have been technically valid. In such case the Commonwealth, if not technically estopped from denying or forfeiting the corporate existence claimed, wiU be held to have waived by such subsequent recognition, any irregularity in the original incorporation. Irregularities in organization. — Comm. v. Central Passenger Railway Co., 1866, 2 Sm., 506. When a corporate franchise is already in existence, but particular modes of procedure are provided by statute for organization— as after the sale of a railway belonging to a, corporation — such acts are not conditions of corporate being; errors therein or failure to strictly conform to Part /.] CHAETEB. 87 the prescribed modes can at the utmost enable the Commonwealth to retake the franchise; it cannot entitle her to a judgment that the franchise has no existence. Power of Legislature to judge of facts warranting forfeiture.— Erie & Nort;heast Railroad Co. v. Casey, 1856, 2 C, 287. Where the right to re- peal a charter depends npon matters of fact, the ascertainment of the facts warranting a forfeiture belongs to the Legislature, and the right to repeal may be exercised by the Legislature without a previous judicial trial when- ever the event occurs upon which it stipulated for the right. Allen 1). Buchanan, 1873, D. C, 9 Phila., 283, 30 L. Int., 76. A commit- tee of the Legislature has not judicial power to declare that a corporation has been guilty of unlawful acts for which its charter may be forfeited. Mere intention to violate duty. — Comm. v. Pittsburgh & Connellsville E. Co., 1868, 8 Sm., 26. Jt seems that no mere design on the part of a corp- oration to violate its dnty can constitute a cause of fort'eiture. Wilfulness of violation. — Erie & Northeast E. Co. v. Casey, 1856, 2 C, 287. A positive violation of a charter which might have been avoided is a wilful abuse of it. But it aeema that a violation need not be wilful to justify a repeal. Claim of forfeiture by private relator.— Comm. v. Allegheny Bridge Co., 1852, 8 H., 185. Corporate franchises cannot be forfeited to the Com- monwealth on quo warranto at the instance of a private relator who does not seek thereby to redress a private grievance. See also Murphy v. Farmers' Bank, 1853, 8 H., 415 ; Comm. v. Phila. & Norristovm Railway Co., 1853, 8 H., 518; Comm. v. Philadelphia & Chester County R. Co., 1881, 10 W. N. C, 400. See further Quo "Warranto. Annulment by courts. — ^Independent &c. Church of Cocalico, 1874, C. P., Lancaster, 5 Lane. B., No. 36. Co\irts have no power to annul a charter decreed and recorded regularly and without fraud. Sepeal of supplement having no consideration.— Philadelphia & Gray's Ferry Railway Co.'s Appeal, 1883, 6 Out., 123. A supplement to a charter which merely confers upon the corporation a new right or enlarges an old one without any new or additional burden, is a mere license from the State, and being vrithont consideration to support it, may be revoked at pleasure. TI. miscellaneous. T?.ight. to possession of charter.— Union A. M. E.Church of Westchester, 1882 C. P. Chester, 1 Chest. Co., 459. A corporation chartered by a court of common pleas is entitled to possession of the original charter after its ap- proval and recording, upon the making of a minut« of the proceedings and decree by the prothonotary and payment of the latter's fees. Evidence— Unrecorded charter.— O'Neill v. Patterson, 1880, 27 Pitts. L J 189 To establish error in rejecting a paper offerred as a charter ot in- corporation on the ground that it was not recorded, it must be made to appear that that defect did not exist. Charter as evidence of corporate character.— Boyd v. Insurance Patrol. 1886 18 W N C 209. The character of a corporation, e. g., whether a charity or not, 'is not to be determined solely from the language of its charter; it is to be determined, not solely by its stated object, but also by the mode in which that object is sought to be attained. As evidence of membership of persons named therein.-McHose «. Wheeler 1863 9 Wr., 32. The charter is pnma facie evidence that all the persons iamed therein as corporators were such at the commencement. A Person so named therein, if he be not a member, must immediately disavow hismembership upon learning that such a use has been made of his name. See also Rowley's Appeal, 19 W. N. C, 280. 88 CHATTELS. CITIZENSHIP. \Part L CHAXXEL,S. Whether included in mortgage of corporation's property, see Mortgage. Taxation of, see Taxation. CaECKS. Union Canal Co. v. Lloyd, 1842, 4 W. & S., 393. Checks purporting to have been drawn by the president of a corporation fifty years previously in fevor of contractors with the corporation, are admissible in evidence to show that the drawer acted as president. CHOSE IN ACTIO?!. Of emporation, see Execution. CITIZENSHIP. Of members of proposed corporation, see Creation of Corporations. Of corporations, see also foreign Corporations, Contracts. Corporation a citizen of incorporating State. — ^Wheeden v. Camden & Amboy E. Co., 1856, 1 Gr., 420, 2 Phila., 23. For purposes of suing and being sned a corporation is to be regarded as a citizen of the State by which it was chartered. The fact that some of the stockholders of a corporation defendant reside in the same State with the plaintiff, cannot prevent the removal of the cause from the courts of that State to the Federal courts. Presumption against legal existence ont of incorporating sover- eignty.— Matthews V. The Trustees, 1869, C. P., 2 Brewst., 441, 7 Phila., 106, 26 L. Int., 140. A corporation has presumptively no legal existence ont of the sovereignty by which it was created. The burden is upon the corporation, or those making the assertion, to show that it is permitted to maintain ite corporate existence in such foreign sovereignty. In the ab- sence of proof of snch fact a corporation chartered by this State will be re- strained by injunction fiom carrying its assets beyond the borders of the State. Incorporation by two States.— Allegheny County v. Cleveland & Pitts. R Co., 1865, 1 Sm., 228. A company chartered in two States by the same name and style, clothed with the same capacities and powers, intended to accomplish the same objects and spoken of in the laws of both States as one corporate body, is a distinct corporation in each State. Same— Suit by citizen of one of States— Jurisdiction.— Allegheny County V. Cleveland & Pitts. E. Co., 1865, 1 Sm., 228. The members of a corporation are presumed in law to be citizens of the State which created the corporation ; a company incorporated by two States is a distinct corporation in each ; therefore a suit against such a corporation by a citizen of one of the States is presumed to be a suit against defendants some of whom are citi- zens of the same State as the plaintiff; and the Federal courts have not ju- risdiction. Corporation chartered by Congress.— Eby v. Northern Pacific Eailroad Co., 1879, C. p., 13 Phila., 161, 36 L. Int., 164. A corporation chartered by Congress is neither an alien nor a "citizen of another State," within the Part J.] CITIZEUSHIP. — COMITY. 89 meaning of Section 639 of the U..S. Revised Statutes ; lience a suit to which it is a party may be removed from a State to a Federal court at any time be- fore trial or final hearing. Foreign corporation— Citizenship of members.— Harley v. Steam Packet Co., 1838, 2 Miles, 249. The liability of a foreign corporation to foreign at- tachment is not affected by the citizenship of the corporators. CI.ERKS. Of Auditor General, power of to settle corporation taxex, see Taxation. CLUBS. Charter provision as to elections in, tee Creation of Corporations. Expulsion from, see Disfranchisement. COAI«. Mining of, on another's land, see Trespass. Under corporation's right of way, contract respecting, see Eminent Domain. COLLATERAL, PROCEEDING. Attack in, upon validity of charter, see Charter IV. Attack in, upon m^ts of ea^lsion, see Disfranchisement. COLLATERAL SECURITY. Stock as, see Stock and Stockholders. Assignment of stock to corporation as, see Assignment, II. Assignment of corporation's securities as, see Id. COLLEGE. Quo warranto against prof essor in, see Quo Warranto. COLLUSION!. See Fraud. COiniTY. See Foreign Corporations. 90 COMMEKCE. — COMMONWEALTH. {_Part I. C09IBIER.CE. Inter-Slaie, taxation of corporationa engaged in, see Taxation : exeeution against property in Pennsylvania of corporations engaged in, see Execution. COMBIISSIOPI. On sale of stock, see Directors, Stock and StoekJiolders. commissioxERS. To receive subscriptions for stock, see Subscription. comniixxEC Of Legislature— Forfeiture of charter by, — ^Allen v. Bnchanan, 1873, D. C, 9 Phila., 283, 30 L. Int., 76. A committee of the Legislature has not judicial power to declare that a corporation has been gniltj of nnlawfdl acts for which ita charter may he forfeited. Of directors — ^Liability. — ^Beeson v. Lang, 1877, 4 Nor., 197. The mem- bers of a committee of the directors of a corporation, elected in, porsnance of an arrangement with itecreditors, to assume management of the corporation's affairs, are not personally liable for goods contracted for by them and used in the conduct of the corporation business. Expulsion upon report of committee. — Comm. v. German Society, 1850, 3 H., 251. A member cannot be expelled without an opportunity of being heard in his defence before the society at large ; it is irr^ular to expel him upon the report of a committee of investigation. COiri9IOX COITNXS. See Assumpsit. commox la^t. Lien, see Lien. Remedies, see Action and Suit. commox PLEAS. See Jurisdiction. COMIHOPI SXOCK. See Stock and Stockholders, Preferred Stock. COBUHON^^BALTHt. As a contracting party with corporations, see Constitutional Law. Exclusive right of, to question validity of charter or compel forfeiture of same, see Charter, Quo Warranto. As an execution creditor of corporation, nee Execution. As a taxing power, see Constitutional Law, Taxation. Part /.] COMPENSATION. — CONSOLIDATED PKEFEEEED STOCK. 91 COmPEKSATIOI^I. Of officers, directors, trustees and agents of corporations, see those several heads. For land taken under the right of eminent drnnain, see Eminent Domain. COMPEXENCY. Of witnesses, see Evidence : asto market v,aVue of land taken wider the right of eminent domain, see Eminent Domain. COKDIXIOX. Of botid, see Bonds. Of subscription for stock, see Stock. CO?(EESSION OF JVDGBEBNX. See Directors, Officers. CONFIRBIAXIOBI. Of report of mewers, see Eminent Domain. C01«EIvICX OF LA'VrS. See Foreign Corporations, Taxation. CONGRESS. Incorporation by, see Citizenship. Exclusive right of, to regulate inter-State Commerce, see Taxation. CONSEQVEl^XIAL, DABIAGES. See Eminent Domain. CONSIDERAXIO?;. See Contracts, Bills and Notes, Seal. "COI9SOLIDAXED PREFERRED SXOCK." See Preferred Stock 92 CONSOUDATIOSr OF COKPORATIONS. — COXSPIHACY. [Part I. CONSOLIDATION OF CORPORATIONS. Authority to consolidate—Act of May 16, 1861.— Comm. v. Pennsyl- vania & Western E. Co., 1884, 41 L. Int., 448. The Act of May 16, 1861 (P. L., 702) does not authorize the consolidation of any but railroad corp- orations, and an attempted consolidation by other classes of corporations is void. Abatement of pending action. — Baltimore & Susquehanna Railroad Ck). V. Musselman, 1856, 2 Gr., 348. The consolidation of a defendant corp- oration with other corporations under a law which provided for a continu- ance of all its liabilities is not such a dissolution of the corjjoration as will abate an action pending at the time of the dissolution. It seems such would not be the eflfect of a mere voluntary consolidation of the corporations, with- out any such provision in the act providing therefor. Debts due to Conunonwealtli!^ — Bnflalo & Erie E. Co. v. Comm., 1871, 3 Brewst., 374. Where two corporations are consolidated a debt due by one of the original companies to the State may be settled by the Auditor Gen- eral against the new companies. The settlement is not vitiated by naming both the companies as debtors: affirming 2 Pear., 376. Affirmed: 15 Wall., 284. Non-assenting members. — ^Fame and Western Hose Companies' Appeal, 1874, 6 Leg. Gaz., 79. An agreement to consolidate two corporations is not binding upon non-assenting members. Lauman v. Lebanon Valley E. Co., 1858, 6 C, 42. A single stockholder cannot object to the consolidation of the corporation to which he belongs with another, under the authority of an act of Assembly, nor to the transfer of the entire property of the former to the latter. But he cannot be com- pelled to accept stock of the company into whose corporate existence that of the dissolved corporation is merged, in payment for the shares held by him in the latter, and a court of equity will restrain the officers of the latter from executing an agreement to that effect. Subscriptions. — McClure u People's Freight Eailway Co., 1879, 9 Nor., 269. A subscription to the stock of a corporation formed by the consolida- tion of three corporations is not invalidated by the fact that at the time of the subscription the agreement of consolidation between the companies had not been filed in the office of the Secretary of the Commonwealth. Contracts made before consolidation— Constitutional law.— Houston V. Jefferson College, 1869, 13 Sm., 428. Where a corporation has a charter which is subject to alteraiion by the Legislature, an act consolidating it with another corporation of like character and purposes, but of a different locality, expressly providing that all liabilities of each shall be discharged by the new corporation without diminution or abatement, does not impair the obligation of cantracts entered into with either before consolidation. CONSPIRACY. Preventing expelled member from resuming rights.— McLafferty v. Sweeney, 1887, 19 W. N. C, 396. An expelled member who has been re- stored to membership by a decree of court cannot resume his rights without producing and serving upon the officers the decree; his simple declaration thereof is not sufficient. The officers' opposition under such circumstances to his resumption of his rights is not conspiracy. By directors to defraud— Stockholders' laches.— Kimmell v. Geeting, 1853, 2 Gr., 125. Where directors of a corporation have divided among themselves stock purchased by one of their number under a resolution of the board which contemplated that the purchase should be for the benefit of all Part J.] CONSPIEACY. — CONSTITUTIONAL LAW. 93 the stockholders, a transfer of the stock on the hooks to the directors and the directors voting such stock at the corporate elections constitute a suffic- ient means whereby the stockholders might discover the fraud. Therefore a stockholder who has neglected for a period of six years after such possi- bility of discovery to seek redress for such fraud is debarred &om bringing an action on the case against the directors for conspiracy. COPfSTIXUTIOKS OF CORPORAXIOPIS. See By-laws and CkmslUution. CONSXITPUTIOBf AIv I^A^W. I. THE PROTECTION OP THE OBLIGATION OF CONTRACTS. 1. Chaetees as Conteacts within the Constiiutional Peotec- TION. a. In General: Miscellaneous Cases. h. Taxation. c. The Right of Altering Charters as Derived from Reservation in Charter or from Acts of the Corporation. 2. CoNTEACTS Between Coepoeations and Theie Membees. 3. Othee Conteacts. II. MISCELLANEOUS. Segulatian of inter-State commerce, see Taxation. Extent of corporatvyri's liability for damages inflicted in exercisingi the right of eminent domain, see Eminent Domain. Cumulative voting at corporate elections under Article XVI, Section 4, of the Constitution of 1874, see Elections. Acceptance of the prmnsUms of the Constitution of 187.4, see Acceptance and Assent. I. Tlie rrotection of tlie Obligation of Contracts. i. Cha/rters as Gmtr'acts within the Constitutional Protection, a. In General: Miscellaneous Cases. The general principle. — The charter of a private corporation is a con- tract between the State and the corporators and is within the provision of the Federal Constitution prohibiting the States from passing laws impairing the obligation of contracts. Comm. v. Bank of The United States, 2 Ash., .349- Dugan v Bridge Co., 3 C, 303; Brown v. Hummel, 6 B., 86; Long v. Farmers' Bank, 1 Qark, 284; Iron City Bank v. Pittsburgh, 1 Wr., 340; Attorney General v. Germantown &c. Turnpike Co., 5 Sni 466; Comm u Penna Canal Co., ]6Sm., 41; Hays v. Comm., 1 Nor., 518; Allen v. Bu- chanan 9 Philk: 283, 30 L. Int., 76; Second and Third Streete Rwy. Co. v. Grten and a,ates Streets Rwy. Co., 3 Phila., 430, 16 L. Int., 197; and see cases infra generally. Eeueal— Abuse of franchises.— Erie & Northeast Railroad Co. v. Casey, 1856 2 C 287" The repeal of a charter for the abuse of the privileges 94 CONSTITUTIONAL LAW. ^Part I, granted therein, in accordance -with a reservation expressly made by the Legislature in the act of incorporation, is not the breach or impairment of a contract Same — ^Non-user — Annulmeiit by constitutioiial enactment. — Chin- eleclamouche Lumber & Broom Co. v. Comm., 1882, 4 Out., 438. A private corporation may forfeit its francnises for non-user within the time named in the charter, or if no time be named, within a reasonable time. And in such case the charter may be annulled by an enactment incorporated in the State Constitution as well as by the usual quo warranto proceedings. The first sec- tion of Article XVI of the Constitution of 1874, declaring the repeal of all charters under which a honajide organization had not taken place and busi- ness been begun, is not in conflict with the prohibition of the Federal Consti- tution against the impairment of the obligation of contracts; such charters had not become contracts. Same— Kepeal of supplement having no consideration. — Philadel- phia & Gray's Ferry Railway Co.'s Appejd, 1883, 6 Out., 123. A supple- ment to a charter which merely confers upon the corporation a new right or enlarges an old one without any new or additional burden, is a mere license from the State, and being vrithout consideration to support it, may be revoked at pleasure. And see generally, as to forfeiture and repeal of charters, Cuarter V. Extent of charter contract. — Manufacturers' and Mechanics' Saving & Loan Co. v. Conover, 1862, C. P., 5 Phila., 18, 19 L. Int., 18. The con- tract contained in a corporation's charter extends only to matters within the corporation's legitimate powers. Municipal regulation. — West Philadelphia Passenger Eailway Co. v. Dougherty, 1876, C. P., 3 W. N. C, 62. A municipality cannot by ordi- nance grant any privilege which substantially impairs the vested rights of private corporations lawfully using its streets. Diversion of the use of property of charitable corporation. — Ply- mouth V. Jackson, 1850, 3 H., 44. The Legislature cannot divert the prop- erty of a corporation erected for religious and charitable purposes to the public uses of a municipal corporation although the latter be chiefly com- X>osed of the members of the first and its limits are nearly co-extensive vrith those residence within which entitles to the benefit of tiie trust for which the first was erected. Purchasers of public works— Increase of liability.— Erie v. Erie Canal Co. , 1868, 9 Sm. , 174. Where the State has granted a public work to a corp- oration, the grantee is discharged from these duties to the public growing out of the work which the State had performed before the grant, unless there are express words in it imposing them upon the corporation — as in the case of the Pennsylvania Bailroad Co. v. Duquesne Borough, 1863, 10 Wr., 223. A subsequent imposition of such a duty is unconstitutional. Comm. V. Pennsylvania Canal Co., 1870, 16 Sm., 41. The State cannot impose upon a grantee of the purchasers of the public works a burden not contained in the stipulations of the original sale. Drew V. New York & Erie E. Co., 1870, 32 Sm., 46. Where a State legisla- ture appoints a commissioner to ascertain how much land is properly included in a purchase by a railroad company under an authority from the State to pur- chase so much as might be necessary for the legitimate purposes of the com- pany, providing that upon a release by the mortgagees of the railroad of so much as should be thus found not to be necessary, the title of such mort- gages should be ratified and confirmed as to the rest ; and this is done ; the transaction is an executed grant on the part of the State and is such a con- tract as is protected by the Constitution of the United States from impair- ment by subsequent legislation. Same— Contracts with State previous to purchase.— Williamspori; & Elmira Canal Co. v. Comm., 1859, 9 C, 288. The purchasers of the State Pari /.] CONSTITUTIONAL LAW. 95 canals took them subject to the obligation of the State, by virtue of a prior contract, to pay all tolls collected at a certain point to a private corporation. Beaver Falls Water Power Co. v. Wilson, 1876, 2 Nor., 83. Where a right in the nature of an easement upon a portion of the public works of the State is acquired by an individual by a contract with the State through its agents, and the works are sold by the State to a corporation, the latter, or a pur- chaser of its property (without its franchises) at a judicial sale, takes the property subject to the easement ; and while not bound to maintain the works in such a condition as to preserve the value of the right, such pur- chaser cannot do any positive act intended to defeat or destroy the right. Taking of corporate property and firanchises under right of emi- nent domain. — Philadelphia, Germantown &c. E. Co. v. Schuylkill Valley E. Co., 1883, C. P., Montgomery, 40 L. Int., 287, 16 Phila., 636. There is no implied contract on the part of the State in granting a charter to a quasi- public corporation that the property or franchises of the latter shall be ex- empt from the common liability of the property of individuals to be taken for public use. Such property or franchises may be demanded for the public use, like any other property, up^ the making of compensation. In re Twenty-second Stoeet, 1883, 6 Out., 108. A corporate franchise, like any other species of property, may be taken by the State by the right of eminent domain, and such taking is not an impairment of the charter contract within the meaning of the constitutional provision. See also Phila. &'Gray 's Ferry Passenger Eailway Co's Appeal, 1883, 6 Out., 123. Same— Limitation of damages for,— Eoyersford Bridge, 1886, Q. S., Montgomery, 2 Montgom. Co., 21. A statute limiting the amount of dam- ages to be paid by municipalities for property and franchises of private corp- porations taken for free public use is unconstitutional. Affirmed : Id., 61, 2 Am., 627. See also Phoenixville Bridge, 1886, C. P., Chester, 2 Montgom. Co., 157. Entry on land without paying or securing compensation.— Colgan v. AUegheny Valley E. Co., 1872, D. C, Allegheny, 3 Crum., 394, 3 Leg. Opin., No. 4, 19 Pitts. L. J., 152. Under the old Constitution a private corporation could not enter upon private property under the right of eminent domain without paying or securing compensation, notwithstanding the right so to do was given by its charter. The provision of an "adequate remedy" for the obtaining of compensa- tion was not sufi&cient in the case of a private corporation. See generally Eminent Domain. Subsequent grant of right to appeal from assessment of damages- Act of June 13, 1874.— Long's Appeal, 1878, 6 Nor., 114. A subsequent legislative grant of a right of appeal from the assessment of damages for land taken by a corporation to which has been delegated by its charter the right of eminent domain does not impair the charter contract, and is con- stitutional. The Act of June 13, 1874, giving an appeal to either party from the assess- ment of damages, may be constitutionally invoiced by or against a company previously chartered under laws providing do right of appeal and which has not accepted the provisions of the new Constitution. The Act of 1874 merely provides a change in the remedy and does not impair the franchise: revers- ing 9 Lane. B., 98. McGrann v. Penna. E. Co., 1883, C. P., Lancaster, 14 Lane. B., 139. An act of Assembly giving a right of appeal from an assessment of damages for land taken by a corporation under the right of eminent domain, no such right having existed under the company's charter, is not unconstitutional in the case of a corporation chartered previously to the passage of such act and the adoption of the Constitutional provision which the act eflfectuates, not- withstanding that such corporation may not have accepted the provisions of the new Constitution. 96 CONSTITUTIONAL LAW. [Parti. Method of voting at corporate elections.— Hays v. Comm., 1876, 1 Nor., 518. The method of voting at corporate elections prescribed by the new Constitution cannot be imposed upon corporations created before the adoption of that Constitution and which have accepted no benefits un- der it. The right to vote for corporate officers in a particular way, estab- lished by a charter, is a vested right. A constitutional convention is not a legislature within the meaning of the Constitutional Amendment of 1857 (subsequently to which time the corporation in this case was created), mak- ing all charters thereafter granted revocable or amendable by the Legislature: overruling Comm. v. Lintsman, 1876, C. P., Westmoreland, 23 Pitts. L. J., 123. But see, as to the last point, Penna. E. Co. v. Duncan and Phila. & Reading E. Co. v. Patent, infra. Modifications of corporator's rights in corporate eleijtions by passage of by-laws, see 2, infra. See, as to acceptance of provisions of Constitution of 1874 respecting corp- orate elections. Acceptance and Assent, Elections. Acceptance of benefits of legislation under new Constitution.— AM V. Ehoads, 1877, 3 Nor., 319. A corporation created before the adoption of the new Constitution, and which has accepted no benefits from legislation under that Constitution, is not subject to any of its provisions to which they would not be liable under their charters. See also Lewis u. JeflMes, 1878, 5 Nor., 340 ; Long v. Penna. E. Co., 1877, C. P., Lancaster, 9 Lane. B., 98. See, as to result of acceptance of such benefits, I, 1, c. b. Taxation. As to extent of lidbilUy to taxation, see Taxation. As to uniformity of taxation, exemption from taxation etc., see II, infra. Liability to pay honus, upon increase of capital, see Increase of Capitql. Omission to stipulate in charter for taxation.— Bank of Penna. v. Comm. , 1852, 7 H. , 144. The omission of the State to stipulate in the charter pf a corporation tor the taxation of the latter is not a contract not to tax it, and the subsequent imposition of a tax is not an impairment of the oblig- ation of a contract. International Navigation Co. v. Comm., 1883, 8 Out., 38. A surrender on the pa,rt of the State of its right to tax a corportion, or to tax it in any but a particular way, will not be implied; it must be in decisive language and upon suflacient consideration. And see, generally, Taxation. Imposition of higher rate of taxation than that specified in char- ter.— Comm. V. Easton Bank, 1849, JOB., 442. Fixing a rate of taxation in the charter of a corporation is not a contract on the part of the State not to increase the tax beyond the rate there established ; and the subsequent imposition of a higher rate is not, therefore, a violation of the provision of the Constitution of the United States forbidding a State to pass anv law im- pairing the obligation of a contract. Comm. V. Fayette County Eailroad Co., 1867, 5 Sm., 452. Where a corp- oration with an amendable chartei is made subject to a specific tax, it may be subjected to a higher tax by a subsequent general law expressly repeal- ing all existing laws inconsistent with its provisions as to taxation. See also Union Improvement Co. v. Comm., 1871, 19 Sm., 140. Iron City Bank v. Pittsburgh, 1860, 1 Wr., 340. Where a charter pro- vides that the corporation shall be liable to pay only a certain class of taxes, but the incorporation is under a general law which expressly stipulates that every such charter shall contain a clause reserving to the Legislature the power to alter or revoke the same, a subsequent general law imposing upon such corporations an additional class of taxes is an alteration of the charter within the meaning of the first statute, and such imposition is not an im- pairment of the obligation of a contract. Part 1.2 CONSTITUTIONAL LAW. 97 Union Passenger Railway Co. v. Philadelphia, 1877, 2 Nor., 429. It seems that the right of the State to increase the rate of a corporation tax cannot be taken away by mere implication from the imposition of a definite tax. Affirmed by U. S. Supreme Court: 8 W. N. C, 377. Union Canal Company v. Dauphin County, 1869, 3 Brewst.. 124. The power to impose on a corporation taxes additional to those specified in the charter or payable under existing general laws need not be reserved in the charter. Exemption from taxation— Revocation.— Comm. v. Pottsville Water Co., 1880, 13 Nor., 516. A contract by the State to exempt a corporation from taxation is equally protected by the Constitutional prohibition of the impairment of the obligation of contracts, whether such exemption is granted by the corporation's original charter or by a supplement thereto. Wagner Institute o. Philadelphia, 1886, C. P., 43 L. Int., 36, 1 C. C. E., 256. The Legislature may, under the authority to alter or revoke chart- ers reserved in the Constitutional Amendment of 1857, revoke an exemption from taxation granted to a corporation subsequently to that date. Whether or not privileges granted to corpoftitions are "injurious to the citizens of the Commonwealth" within the meaning oftheAmendment, is exclusively within the determination of the Legislature where such a privilege is an exemption from taxation. All exemptions but those specified in the Act of May 14, 1874, under the authority of the present Constitution were repealed by Arti- cle IX, Section 2 of the. Constitution and the proviso of the Act of 1874. ASSrmed, upon another point, in 44 L. Int., 411. Act of May 1, 1868. — Union Improvement Co. v. Comm., 1871, 19 Sm., 140. The Act of May 1, 1868 (P. L. 108), imposing liability to taxation upon "all companies whatever" excepting banks, &c., included a corpora- tion, not falling within the specified exceptions, whose capital stock and dividends were exempted from taxation by the charter: affirming 2 Pear., 383. Comm. V. Reading & Wilmington Railroad Co., 1875, C. P., Dauphin, 2 Pear., 394. The Act of May 1, 1868 does not impose a tax on corporations, but makes the corporations the collector ol the tax upon the money due to their creditors, residents of this State. The act is constitutional. c. The Right of Altering Charters as Derived from Reservations in the Charter or from Acts of the Corporation. As to the .mode and validity of acceptance of amendments of charter, see Accept- ance and Assent. Reservation of right to alter charter.— Houston v. Jefferson College, 1869, 13 Sm., 428. A provision in an act of incorporation that the constitu- tion should remain irrevocable, and should not.be altered in any other man- ner than by the Legislature, is a good reservation to the Legislature of the power to alter the charter. See also Comm. v. BonsaU, 1838, 3 Whart., 559. Comm. V. BonsaU, 1838, 3 Whart., 559. Where the Legislature has ex- pressly reserved to itself the power to alter the constitution of a corporation, the validity of such an alteration is not affected by the absence of the corp- orators' assent thereto. Consolidation of corporations.— Houston v. Jefferson College, 1869, 13 Sm. 428. Where a corporation has a charter which is subject to alteration by the Legislature, an act consolidating it with another corporation of like character and purposes, but of a different locality, expressly providing that all liabilities of each shall be discharged by the new corporation without diminution or abatement, doe.s not impair the obligation of contracts entered into with either before consolidation. 7 — MURPHY. 98 CONSTITUTIONAL LAW. [Part I. Effect of Constitutional Amendment of 1857. — Zimmerman v. Perkio- men & Reading Turnpike Co., 1873, 32Sm., 96. After the Constitutial Amend- ment of 1857, giving the Legislature the right to alter or revoke any charter thereafter conferred, the Legislature could reiieal a law passed subsequently to such Amendment, granting an additional charter right. Monongahela Bridge CJo.'s Appeal, 1887, 19 "W. N. C, 161. A corporation chartered prior to the Fourth Constitutionel Amendment of 1857 but which has accepted an amendment to its charter subsequently thereto is liable to the provisions of a statute passed subsequently to the Constitutional Amend- ment but prior to the amendment of its charter. Same— Liability to provisions of new Constitution— Penna.Bailroad Co.'s liability for consequential damages— Implied acceptance of new charter subject to alteration under Act of May 3, 1855.— Pennsylvania Railroad Co. v. Duncan, 1886, 1 Am., 352. The Pennsylvania Railroad Company is liable for consequential damages arising from the operation of its road. The Eighth Section of Article XVI of the State Constitution, pro- viding for the payment of consequential damages by corporations, applies to private as well as municipal corporations. The purchase of the State's Main Line by the Pennsylvania Railroad Company under the Act of May 15, 1857 was an acceptance by that Company of a new charter at that time, and it thereupon became subject to the provision of the Act of May 3, 1855 that the charters of all corporations should be subject to alteration or revocation by the Legislature. The fact of the Company's purchase of the Main Line irom the State under legislative authority did not exempt it from the operation of future legislation. By its acceptance of the Act of April 4, 1868 the Company became subject to the provisions of the Constitutional Amendment of 1857, which supplied the provisions of the Act of 1855. The Eighth Section of Article XVI of the Constitution applies to corpora- tions existing at the time it was framed where their charters were subject to alteration under the Act of 1855 or the Amendment of 1857. The 10th Section of Article XVII was not intended to apply to such corporations. See also Williamsport v. Williamsport Railway Co., 1887, C. P., Lycoming, o \j. C R., 39. Same— Beading Bailroad Co.— Philadelphia & Reading Railroad Co. r. Patent, 1886, 17 "W. N C, 198. The PhUadelphia and Reading Railroad Company, although originally chartered prior to the Act of May 3, 1855 and the Constitutional Amendment of 1857, making the charters of corporations thereafter created subject to alteration or revocation by the Legislature, ren- dered itself subject to the provisions of that Act and Amendment by acceptr ing subsequently additional privileges and powers under the Acts of Aug. 23, 1864 and Mar. 19, 1872. It is therefore liable, under the Constitution of 1874, for consequential damages in the'ejieration of its road. The 8th Sec- tion of Art. XVI of the Constitution applied to corporations existing at the time of its enactment -whose charters were subject to the provisions of the Act of 1855 and the Amendment of 1857. S. Contracts between Corporations and their Members. Impairment of obligation of contract by passage of by-laws.— In- surance Co. V. Connor, 1851, 5 H., 136. A corporator may enter into an in- dependent contract with the corporation additional to the contracts involved in his membership, and his rights under such independent contract will be as fully protected as those of a stranger. His rights under it cannot be for- feited through the subsequent imposition of new obligations by the passage of by-laws to which he does not consent, nor can other remedies for enforc- ing it against him be resorted to than those existing at the time of its for- Part 1.2 CONSTITUTIONAL LAW. 99 mation. See also Bradfield v. Ins. Co., 1880, C. P., Montgomery, 9 W. N. C, 436 ; Orangeville Loan Assn. v. Young, 1880, C. P., Columbia, 9 W. N. C, 251, 37 L. Int., 475, 14 Phila., 624. Orangeville Loan Association v. Young, 1880, C. P., Columbia, 9 W. N. C, 251, 14 Phila., 624, 37 L. Int., 475. The mere fact that a corporation has adopted an illegal by-law relating to a general class of contracts between it and its members does not absolve from his obligations a member indebted to it upon a contract of that class, where that particular contract was not affected by the objectionable by-law. Corporate elections.— Eaynor v. Beatty, 1880, C. P., 9 W. N. C, 201, 14 Phila., 80, 37 L. Int., 298. By-laws imposing new or additional qualifica- tions for voting at corporate elections, beyond those prescribed by the char- ter, are void. Wilson V. Academy of Music, 1886, C. P., 43 L. Int., 86, 2 C. C. E., 280. Under authority to adopt such by-laws as may be expedient for the well- being of the corporation, a by-law may be passed providing that a stock vote may be ordered at any annual, adjourned or special meeting of the stock- holders when demanded over th« signatures of ten stockholders upon any question proposed in writing and duly seconded. Same — ^Proxies. — Comm. v. Coxe, 1873, C. P., Schuylkill, 1 Leg. Chron. E. , 89. The right of voting by proxy cannot be abridged by a by-law passed by the board of directors vrithout the knowledge or consent of the stock- holders, imposing upon it conditions not required by the charter. Assessment of shares. — Brown v. Mining Co., 1873, 10 Phila., 32, 30 L. Int., 124. A corporation has no power to assess the full-paid shares of its members unless such power is conferred by the charter, or unless the mem- bers have in some way bound themselves to pay assessments. Where no power to assess is given in the charter, it cannot be conferred by an amend- ment. Salaries of corporate officers. — Ehrenzeller v. Union Canal Co., 1829, 1 E., 181. A statute prohibiting the payment of salaries to the officers oif a corporation until the re-commencement of the work tor which the corpora- tion was formed is not unconstitutional as affecting a secretary who holds his office at the pleasure of the managers. 3, Other Contracts, Contracts with State preeious to sale of the Public Works, see I, 1, a. Corporate bonds— Presumption of holder's assent.— Gilfillan». Union Canal Co., C. P., 1879, 7 W. N. C, 179. The obligation of a contract be- tween a corporation and its bondholder is as much within the protection of the Constitution as is that of any other contract. Legislation to the effect that a bondholder shall be presumed to have assented to a proposed modifica- tion of his rights, if vfithin a certain time after such modification he does not dissent from it, is invalid. The contract of subscription— Formation of two corporations from one.— Indiana Turnpike Co. v. Phillips, 1830, 2 P. & W., 184. Where, un- der an act for the incorporation of a company, commissioners are appointed and stock subscribed, a subsequent legislative enactment forming the in- choate corporation into two distinct corporations in lieu of the first and ap- portioning between them the stock subscribed, is unconstitutional, as im- pairing the obligation of a contract, and an original subscriber is not liable to one of the two corporations upon his contract of subscription. Same— Subscription for specified object.— Pittsbgh. & Stenbenville Eailroad Co. v. Gazzam, 1858, 8 C, 340. To entitle a corporation to re- cover upon an alleged contract to subscribe to its stock, it must clearly ap- pear upon the face of the contraet that it was the plaintiff company whose 100 CONSTITrTIONAL LAW. [Parti. stock was subscribed. And it is not competent for the LegLslatnre to pro- vide that a promise to subscribe a certain amount for a specified object shall be deemed a subscription to the stock of a particular company. Validating subscriptions become void by corporation's breachof con- ditions.— Plank Road Co. V. Davidson, 1861, 3 Wr., 435. A subscription to the stock of a corporation whose charter was, by the terms of the act of in- corporation, to become null and void upon the failure of the corporators to perform certain conditions, becomes void upon such failure to perform, and no action can be maintained thereon, an act of Assembly subsequent to such breach of condition, extending the time of performance and attempt- ing to " legalize and make valid " the original subscriptions, cannot rein- state the contract. Same— Abolition of penalty for non-pajrment of instalments.— Cus- ter V. Titnsville Gas & Water Co., 1869, 13 Sm., 381. A provision in a charter that upon failure to pay an instalment of stock when it is called for, the corporation may, after the expiration of thirty days from such demand and failure, add five per cent, per month to the instalment, is not a part of the contract of subscription, but is a penalty; and a statute abolishing it, passed after a contract of subscription has been made, is not unconstitu- tional as impairing the obligation of that contract. II. miscellaneous* Creating, renewing or extending more than one charter by one act of Assembly.— Cleveland &c. Railroad Co. v. Erie, 1856, 3 C, 380. To create, renew or extend a charter, within the Constitutional prohibition against the creating, renewing or extending of the charters of more than one corporation by the same act of Assembly, means to make a chartei- which never existed before, to revive an old one which has expired or to increase the time for the existence of one which would otherwise reach its limit at an earlier period ; the mere increase of the privileges of more than one corpor- ation by the same act of Assembly is not within the prohibition. Clearness in title of incorporating statute. — Rogers v. Manufacturers' Improvement Co., 1885, 43 L. Int., 66. An act of Assembly entitled "An Act to incorporate the Manufacturers' Improvement Company," incorporat- ing a company to improve a water highway, erect dams, charge toll etc., is unconstitutional, the title not clearly expressing the purpose. Uniformity of taxation— Exemption of securities owned by corpor- ations from taxation under Act of June, 30, 1885.— Fox's Appeal, 1886, 2 Am., 337. The Act of June 30, 1885, imposing a tax upon money at in- terest, mortgages etc., does not include within its purview such property owned by corporations. It is not on this account, however, a violation of Article IX, Sections 1 and 2 of the Constitution, providing for uniformity of taxation, since, it being a supplement to the Act of June 7, 1879, the two Acts must be read together, and the last mentioned Act imposes a similiar tax upon the capital stock of corporations, which is a tax upon its property and The proviso in the Act of 1885 exempting building associations from its operation, therefore, does not render it unconstitutional because the proviso is harmless. Nor does the 20th Section. See also Hunter's Appeal, 1886, 18 W. N. C, 411. ^^ ' Same— Act of June?, 1879— Foreign corporation license tax.— Pem- bma Mining Co. v. Comm., 1883, 13 W. N. C, 521, 41 L. Int., 17. The of- fice license tax imposed upon foreign corporations by the Act of June 7, 1879, is not in conflict with the Constitution of the State or that of the United States. Part -T.] CONSTITUTIOSTAL LAW. 101 Same — ^Indispensable property of corporations. — CoatesvilleGasCo. v. Chester, 1881, 1 Out., 476. The public works of a corporation, used as such, with their indispensable appurtenances, are exempt from taxation as land when they are subject to taxation in the form of capital stock, notwithstand- ing Sections 1 and 2 of Article IX of the State Constitution and the Act of May 14, 1874 (P. L., 158), prohibiting exemptions from taxation: reversing 1 Chest. Co., 153. Illegal increase of indebtedness by company jointly incorporated by two States. — Rothschild v. Rochester & Pittsburgh R. Co., 1886, C. P., Elk, 1 C. C. R., 620. An increase of indebtedness made in violation of Sec- tion 7, Article XVI of the State Constitution by a corporation chartered by the joint action of this and another State, is invalid as to Pennsylvania stockholders in respect of the property and franchises of the company in this State. A stockholder in such a corporation who, by accepting and disposing of one of the bonds given for such increase, has ratified the issue is not thereby barred from asserting his interest as a stockholder in the corporate property in Pennsylvania against one basing his claim to it upon such illegal increase of indebtedness. Appropriations to corporations. — In re Northern Home, C. P., 1876, 2 W. N. C, 349. Eleemosynary corporations arfe within the Constitutional provi.sion prohibiting municipal corporations from appropriating money for " any corporation." Corporate elections. — ^Pierce v. Comm., 1883, 8 Out., 150. Article XVI, Section 4, of the State Constitution, providing for the right to vote cumula- tively for directors of corporations, is not merely directory, and does not re- quire legislation to give it effect. It is not necessary to the exercise of this right that notice should be given of the intention to do so. Comm. V. Lintsman, 1876, C. P., Westmoreland, 23 Pitts. L. J., 122. The provision for cumulative voting in Article XVI, Sec. 4, of the State Constitu- tion gives the stockholder the right to cast for one person as many votes for each share held by him as there are directors to be elected. Act of April 11, 1862— Supreme Court jurisdiction over corporation mortgages.— McCurdy's Appeal, 1870, 15 Sm., 290. The Act of April 11, 1862 (P. L., 477), giving to the Supreme Court chancery jurisdiction in cases of mortgages by corporations, is constitutional. See also Swope v. Gettysburg R. Co., 1870, 2 Lane. B., No. 16, 2 Leg. Gaz., 226. Injunctions against corporations— Jurisdiction. — McGeorge v. Han- cock Steel & Iron Co., 1875, C. P., Montour, 11 Phila., 602, 32 L. Int., 372. The jurisdiction of the courts of common pleas over cases of injunction in which a corporation is defendant is not taken away by the new Constitution. The jurisdiction of the Supreme Court is not exclusive. Fargo V. Oil Creek & Allegheny River Railroad Co., 1875, 32 Sm., 266. Under the Constitution of 1874, a mere prayer for an iniunction against a corporation will not give the Supreme Court jurisdiction where the main intent of the bill is to effect another purpose. 102 CONSTKUCTION. — CONTEACTS. [_Part I. COPISTRUCXION. Of charters, see Charter, II. Of contracts, see Contracts, V, Mortgage. Of statutes, relating to taxation, see Taxation ; generally, see Statutes, Charter, II. Of constitutional provisions, see Constitutional Law, Eminent Domain, Taxation. Of corporate works : duty of corporations to construct or re-construct roads, bridges, culverts etc., as incident to the construction of its works, and the con- struction of corporate works' generally, see Eminent Domain ; time and manner of, as affecting the contract of subscription, see Subscription ; negligence in, see Eminent Domain ; delay in, see Abandonment, Charter, V; construction in particular manner, under contract, see Injunction, Eminent Domain. CONSTRUCTIVE. Fraud, notice, trust, see those several heads. CONTRACTS. I. THE GENERAL POWER OF CORPORATIONS TO MAKE CON- TRACTS—VALIDITY ETC. II. CONTRACTS ON BEHALF OF PROPOSED CORPORATIONS- PRIVITY ETC. III. CONTRACTS BY CORPORATIONS OUTSIDE OF THE INCORP- ORATING STATE. IV. FORM OF CONTRACTS BY CORPORATIONS. V. CONSTRUCTION. VL MISCELLANEOUS. Contracts made in the name of corporations by officers, directors and agents, see Officers, Directors, Agents. Batijication, sec Acceptance and Assent, Agency. Charters as contracts, see Constitutional Law. Constitutional protection of the obligation of contracts, see Id. Contracts by foreign corporations, see Foreign Corporations. The contract of subscription, see Subscription. Contracts relating to stock, see Stock and Stockholders. Contracts relating to property taken for the construction of corporate works, see Eminent Domain. See also Covenant, Bills and Notes, Bonds, Lease, Mortgage. ■P<"^ ^-^ CONTRACTS 103 I. Xbe General Power of Corporations to Blake Con- tracts— Validity etc. iSfee also Franchises, Powers of Corporations, Mortgage. Generally. — McMasters v. Eeed, 1854, 1 Gr., 36. Corporations have power to bind themselves in »ny form of obligation entered into in pur- suance of the powers expressly granted by their charters or necessarily im- plied therein, unless there be some statutory provision to the contrary. See also Hanson v. Eailroad Co., 1874, C. P. 1 W. N. C, 7; Graham v. Rail- road Co.. 1874, C. P., 1 W. N. C, 40. Contracts beyond scope of corporate powers.— McKay «. Seyfert, 1877, C. P., 34 Li. Int., 248. Contracts not within the scope of the powers granted to a corporation are void. See Powers of Corporations. Improper grant of powers. — Freeland v. Pennsylvania Central Insur- ance Co., 1880, 13 Wr., 504. A corporation contract is ultra vires when it is beyond the powers conferred on the corporation ; a contract vnthin such powers cannot be alleged to be ultra vires because the powers themselves are, according to the allegation, improperly conferred. Ultra vires act done as agent.— Philadelphia v. Western Union Tele- graph Co., 1876, C. P., 2 W. N. C, 455, 11 Phila., 327, 33 L. Int., 129. A corporation cannot justify an act which under its own charter is ultra vires by doing it jointly with another corporation possessing the power to do it, or by doing it as the agent of such corporation. Ultra vires act through agent— Acquisition of land by foreign corp- oration.— Comm. V. New York, Lake Erie & Western R Co., 1887, 19 W. N. C, 1, 44 L. Int., 178. A foreign corporation cannot purchase the charter of a Pennsylvania corporation through the intervention of an individual agent secretly acting on behalf of such foreign corjmration and thereby ob- tain the control and practical ownership of lands in Pennsylvania which it is not authorized to hold directly ; and such lands are subject to escheat although the legal title to them is held by the Pennsylvania corporation. Effect of ultra vires upon rights of parties.— Insurance Bank v. Bank ofThe United States, 1847, D. C, 4 Clark, 125, 7 P. L. J., 129. Where the stockholders of a corporation make an agreement which is not binding upon the corporation or is incompatible with its charter, effect will nevertheless be given to it if it is otherwise valid and there are no interests or rights to be affected thereby except those of the parties. Oil Creek &c. Railroad Co. ». Pennsylvania Transportation Co., 1876, 3 Nor., 160. Where a contract has been executed on the partof a corporation, the other contracting party when sued upon the contract for the mere money consideration cannot set up that the contract was ultra vires. See also Wright V. Pipe Line Co., 1882, 5 Out., 204. Jenkins Townships. Yatesville Borough, 1880, C. P., Luzerne, 9 Luz. Leg. Reg., 229. The fact that the purchase by a corporation of debts owing by a township may be ultra vires does not destroy the binding character of the debts. First National Bank of AUentown v. Hoch, 1879, 36 L. Int., 331. Where an ultra vires contract is made with a corporation through its oflScer, but the corporation has received no benefit from it and the other contracting party has not parted with anything of value under the contract, the latter party cannot recover upon the contract against the corporation. Discount of notes.— Bright v. The Banking Co., 1882, 3 Penny., 478. The discount of notes by a corporation authorized by statute to invest its capital in notes and to purchase and hold securities in payment of the debts due it, is not ultra vires. 104 coxTEACTS. Part /.] Lease involving forfeiture. — ^Wilmington & Reading B. Co. v. Berks County E. Co., 1878, 6 W. N. C, 115. A contract oyaTailroad company to complete its road and lease a part of it to another railroad company and pay the principal and interest of its first mortgage bonds when due, and that upon default etc., the other company shall take possession of its road and operate it until the first company obtains a release of the mortgage from the portion of its road leased to the second etc., !ield to be ultra tires and void as providing for a forfeiture, if not absolute, so indefinite in character as not to be computable. Illegal sale of stock— Note— Affidavit of defence. — Iowa Gulch Min- ing Co. V. Work, 1883, C. P., 13 W. N. C, 47. In an action by a foreign corporation upon promissory notes given for its stock, an aflSdavit of defence setting forth statutes of the State by vyhich the plaintiflf was incorporated, and alleging that the stock in question was sold in a manner and for a price prohibited by such statutes, is sufficient. Illegal by-law — Contract between corporation and member.— Orangeville Loan Association v. Young, 1880, C. P., Columbia, 9 W. N. C, 251, 14 Phila., 624, 37L. Int., 475. The mere fact that a corporation has adopted an illegal by-law relating to a general class of contracts between it and its members does not absolve &om his obligations a member indebted to it upon a contract of that class, where that particular contract was not affected by the objectionable by-law. Compensation of director— Besolution authorizing,— Want of con- sideration. — Loan Assn. v. Stonementz, 1857, 5 C, 534. A director of a corporation, elected to serve without compensation, cannot recover against the corporation for services rendered in the capacity of director or for snch as were incidental to that office ; a resolution passed by the directors after such services were rendered, authorizing compensation therefor, is not valid as a contract, being without consideration, and void. See also Keld v. Union Box Co., 1876, C. P., 2 W. N. C, 426. Contract to commute debt due corporation by director.— Baird v. Bank of Washington, 1824, US. &E., 411. The fact that a director is responsi- ble for a portion of a debt due the corporation does not invalidate a contract to commute it voted for by snch director, except upon evidence of collusion with the other directors or fraud on the part of the defendant; the latter's liability remains unaffected. Contracts made in violation of cli^ier provisions as to form.— Haz- lett V. Ins. Co., 1874, C. P., 1. W. N. C, 24. Where the charter of an insurance company provides that all contracts of insurance made by it shall be in writing or print, nnder the corporate seal, and signed by the president, a verbal contract of insurance by an officer of the company is ultra vires. See also Graham v. E. Co., 1874, C. P., 1 W. N. C, 40; Hanson v. E. Co., Id., 7. Contract for exclusive performance of corporate duty.— Sandford V. Eailroad Co., 1855, 12 H., 378. A corporation upon which is imposed a public duty must perform that duty impartially for every member of the public, upon compliance with the customary terms. It cannot contract to perform snch duty exclusively lor one or more individuals or corporations. See also Bell Telephone Co. t>. Comm., 1886, 17 W. N. C, 505. Sterrett v. Philadelphia Local Telegraph Co., 1886, C. P., 43 L. Int., 291, 18 W. N. C, 77. A company incorporated simply for the purpose of trans- mitting telegraphic despatches for the public, but which establishes in con- nection therewith the business of collecting and distributing news under a special contract with each customer, is not bound to perform the latter service for all who may apply for it, and may discontinue the service at pleasure when its contracts expire. Conta^ to assign performance of corporate duties.— Snow v. Deer- field, 1875, 28 Sm., 181, 1 W. N. C, 382. A corporation to which has been granted a portion of the State's right of eminent domain cannot assign by contract the performance of any of the duties made incident to its exircise. Part /.] CONTRACTS. 105 11. Contracts on Bebalf of Proposed Corporatlons- PrlTity etc. Titus V. Catawissa Railroad Co., 1863, 5 Phila., 172, 20 L. Int 173 A corporation cannot ratify a contract made by it before its incorporation' ac- cepting the benefit of the promise made by the other party, without makina the entire stipulated return. Contract by agent of association afterward incorporated— Swiss- helm V S wissvale Laundry Co. , 1880, 37 L. Int. ,514. A contract under seal to sell land was made between the owner and a member aud agent of an as- sociation intending at the time to become a corporation and shortly after- ward actually receiving its charter. The agent executed the contract as for himself alone, although the intention of all parties was that the purchase should be by and for the association. The corporation accepted the contract in parol and entered into possession of the land. Held that the corporation was liable in assumpsit for the stipulated price. Statement by promoter.— Roberts ». Crystal Spring Water Co., 1881, C. P., Chester, 1 Chest. Co., 437. A statement by a promoter of a proposed corporation in the application for the charter does not constitute a contract which the corporation, when created, is bound to carry out, e. g., a state- ment that a certain amount of full paid stock is to be issued to certain part- ies in full payment for real estate to be conveyed to the corporation by such parties does not preclude the latter from issuing a scire facias upon a mort- gage given them by the corporation for the purchase money of such real estate. Cause arising before incorporation.— Packer v. Sunbury & Erie E. Co., 1852, 7 H., 211. A corporation plaintiff is not barred from equitable relief on the ground that the alleged wrongs were committed before the issuing of letters patent to the plaintiff where there was no tardiness in the organiza- tion of the company sufficient to forfeit its corporate rights. Subscription.— Steamship Co. u. Murphy, 1867, D. C, 6 Phila., 224, 24 L. Int., 228. A subscription to the stock of a proposed corporation may be sued upon by the corporation after it comes into existence. See also Edinboro' Academy v. Eobinson, 1860,1 Wr., 210; Shober v. Park Assn., 1871, 18 Sm., 429. Liability for promoter's services. — Bell's Gap Railroad Co. v. Christy, 1875, 29 Sm., 54, 1 W. N. C, 618. A corporation which has accepted the benefit of a contract entered into on behalf of the prospective corporation by a promoter is not liable to the latter for his services, unless such contract was authorized by a majority of the prospective corporators. Act done between expiration of charter and re-incorporation.— Sloan v. The Eeal Estate As.sociation, 1875, C. P. 1 W. N. C, 182. An act done by the former members of a corporation in the interim between the expiration of the original charter and re-incorporation is not valid where it is not done in accordance with the provisions of either the original charter or the new one. Consolidation with another company after incorporation.— Bensinger V. Wren, 1882, 4 Out., 500. Although a contract with a company not incorp- orated but having incorporation in view is binding upon the corporation, yet where such a contract contemplates the continuance of the company, after its incorporation, in the same business which it carried on before, it is re- scinded when the company is consolidated with a corporation whose charter expressly provides that no such business shall be carried on. 106 CONTEACTS. \_Part I. III. Contracts T>y Corporations Outside ot the In- corporatinsf State. See also Foreign Corporations. Bank of Kentucky v. Schuylkill Bank, 1846, C. P., 1 Parsons, 180. By tlie comity of nations corporations have, within the limited scope of their powers, the same capacity to make, through their agents, contracts in sov- ereignties where they have no citizenship as have natural persons. But the I)ower of a foreign corporation to enter into any contract in question is to he ascertained in the adjudications of tribunals of the state which created it. And it is permitted to exercise only those powers with which it is endowed by the latter. A provision that the stock of a corporation shall be transferable at such places as the president and directors shall prescribe is suflScient authority to the corporation to establish a transfer agency outside of the State of its creation. AffirTned by the Supreme Court. Atherton v. Wilkesbarre, 1885, C. P., Luzerne, 14 Luz. Leg. Reg., 331, 3 Kulp, 402. A court of equity will not compel the execution of a contract made and to be performed in this State by a foreign corporation which has not complied with the provisions of the Act of April 22, 1874. IV. Form of Contracts lay Corporations. Name of contracting corporation. — Berks & Dauphin Turnpike Co. v. Myers, 1820, 6 S. & R., 10. A departure from the strict style of a corpora- tion will not avoid its contracts if it substantially appear that the particular corporation was intended; and a lat«nt ambiguity may, under proper aver- ments, be explained by parol evidence. Hendel v. The Berks & Dauphin Turnpike Co., 1827, 16 S. &E., 91. Where a corporation brings suit in its proper corporate name upon a contract signed with a different name, the question whether the contract was made by the plaintiff and the variation in the corporate name was a mistake is for the jury. Corporate seal.— Chestnut Hill Co. V. Rutter, 1818, 4 S. & E., 6. The appending of the corporate seal is not necessary to make an act that of the corporation and impose liability therefor : overruling Breckbill v. Turn- pike Co.. 3 Dall., 396. Berks & Dauphin Turnpike Co. v. Myers, 1820, 6 S. & E., 10. The affixing to a contract of the corporate seal, which is a purely ministerial act, may he done by a number of managers less than the minimum who, under the chart- er, may enter into the contract; the seal itself is prima facie evidence that the contract has been duly entered into by the corporation, unless the au- thority to affix it is confined by the charter to a particular officer or member, and where there is no such restriction, the question of its authorization is for the jury. Form of sealed instrument.— Hoskins v. Mehaffey, 1824, 11 S. & R., 126. "Where in the body of a sealed instrument the covenants are stated as though made directly by a corporation with the plaintiff, but it is signed and sealed with the seal of the president, who is duly authorized to enter into the con- tract as the corporation's agent, the latter is not personally liable upon it. V. Construction. Construction of special contracts.— Union Canal Co. v. Antillo, 1842, 4 W. & S. , 553. A certificate of loan from a corporation construed converti- ble into stock by the holder before a certain date but redeemable at any time only by the corporation. Part Z] CONTEACTS. — GONTEIBUTION. 107 Bro\m V. Lehigh Coal & Navigation Co., 1865, 13 Wr., 270, Constrnction of special contract that scripholders of a corporation might on certain terms become shareholders. Catawissa Railroad Co. v. Titus, 1865, 13 Wr., 277. Construction of special contract between bondholders of an insolvent corporation under which a new company was organized, "the expenses of carrying out the agreement to be borne by the new company." Consideration— Payment in stock.— Phillips v. Allegheny Car Co., 1876, 3 W. N. C, 347. Where a corporation agrees to pay the consideration of a certain contract in its own stock, the corporation's failure to tender cert- ificates at the specified time, no demand having been made, does not cause the amount to become payable in money. VI. Miscellaneous. Failure to communicate rules and resolutions affecting contracts.— Donaldson v. Reading Railroad Co., 1875, C. P., 1 W. N. C, 284. A party contracting with a corporation is not affected by an alleged rule of the com- pany regulating such contracts of which he was not actually informed at the time of making the contract, and which was not to be found in any written or printed form and did not appear upon the company's minutes as having been adopted by a vote of the directors or stockholders. Darrach v. Hanover Junction & Susquehanna Railroad Co., 1876, C. P., Lancaster, 9 Lane. B. , 141. A resolution of a board of directors of a corpor- ation limiting the pay of an employ^, not made known to him, will not pre- vent such employ^ from recovering against the corporation what the services were reasonably worth. Assignment of construction contract— Profits— Taxation as divi- dends. — Credit Mobilier v. Comm., 1870, 17 Sm., 233. Where a constrnct- ion contract entered into by an individual is by him assigned to trustees to be executed, the profits to be divided among certain persons, such profits are not taxable as corporation dividends, notwithstanding that the eestuis que trust are described as the stockholders in the corporation, and that the corp- oration guarantees all persons from liability in the execution of the contract, agrees to advance funds and receive a commission and does part of the work in the expectation that the contract would be transferred to it. The profits realized are not by these circumstances made corporate property. CO^fXRIBlTTIKG lUEiaBBRS. Diligent Fire Co. v. Cftmm., 1874, 25 Sm., 291. Where a charter provides that the corporation may bestow honorary membership upon active mem- bers, a by-law authorizing the election of "contributing" members in the same manner as active members is void. Neptune Hose Co. 's Appeal, 1874, 6 Leg. Gaz. , 79. The contributing mem- bers of a fire company held entitled to share in the distribution of its assets on dissolution. COXTRIBUXIO?!. Reorganization trustee— Bill for contribution.— Fawcett*. Ball, 1879, 26 Pitts. L. J., 201. Where a number of the stockholders of an insolvent corporation pay the debts of the latter upon a compromise, purchase its as- sets at public sale and assign them to one of their number for a nominal con- sideration, the latter cannot maintain a bill for contribution, as a creditor, 1(B CONTRIBUTION. — CONVEKSION. IPart J. £^aiiist the members who did not join in payment of the debts; bnt he may maintain snch a bill as trustee for the syndicate of stockholders who paid the debts. Action by trustee against member for proportion of expenses — Amendment.— Comfort v. Leland, 1837, 3 Whart., 81. Where the act of Assembly incorporating a company provides that each member of the com- pany, his heirs and successors, shall pay "to the trustees for the time be- ing" his proportion of certain expenses, an action against a member to re- cover such proportion need not be brought in the corporate name, but is properly brought in the name of the trustees; and where brought in the name of the corporation treasurer, as treasurer, it is error to refuse to per- mit the proper amendment. Note by directors for use of company.— Slaymaker v. Gundacker, 1823. 10 S. & K., 74. If the directors of a corporation become the makers and in- dorsers of a note on which money is borrowed for, and applied to the use of the company, they are mutually responsible to each other, and if one of them pays it, the others are liable to contribution. Stockholders' suit to recover voluntarily paid assessments. —Bid- well V. Pittsburgh, Oakland & East Liberty R. Co., 1886, 44 L. Int., 60. Where all the stockholders of a corporation make voluntary contributions to it by pro rata assessments, one of them cannot, after he has ceased to be a stockholder, recover such advance on the ground that it was a loan, although such a recovery had previously been allowed to another of the stockholders. Creditor's bill to compel refunding of proceeds of corporate prop- erty.— Bickley V. Paul, 1875, C. P., 2 W. N. C, 301, 11 Phila., 256, 33 L. Int., 22, 8 Leg. Gaz., 21. After a return of Nulla bona to an execution upon a judgment against a corporation, the judgment creditor may file a bill in equity to compel the stockholders to proportionately refund the amount re- ceived by them from the proceeds of a sale of the corporate property, or so much thereof as may be necessary to pay the complainant's debt. But the corporation must be added as a party defendant. Contribution by stockholders to pay loss — Taxation. — Columbia Con- duit Company r. Comm., 1879, 9 Nor., 307. The amount contributed by stockholders to pay a loss incurred by the corporation cannot be deducted from the taxable dividend as made or declared, the tax being imposed upon dividends as distinguished from net profits. COPITROI.. Of internal corporate action, see Internal Government, Director, Aceqftance and Assent. Of property and essential franchises of corporations, see Franchtses, Reorganiza- tion. Of directors' discretion, see Directors, Officers. COPfVERSIOPt. Qf bondi into stock, see Bonds, II: of scrip or certificates of loans into stock, see Contract, V. Of corporate property by officer, see Officers. Part 1.2 CONVEYANCE. — COSTS. 109 CONVEYANCE. Construdive notice of, see Notice. Of lands to corporations, see Powers of Corporations. CONVICTION. Of corporator, of offence, see Disfranchisement. COPIES. Of corporation bonds, filing of, in action on coupons, see Affidavits, Bonds. Of corporation books as evidence, see Evidence. CORPORATE. Books and records, ejections, name, seal etc., see those several heads. Business, see Kinds of Corporations, Taxation. Capacity, see Action and Suit, Charter, Creation of Corporations. Existence, see Charter, IV and V, Creation of Corporations, Dissolution, Quo Warranto. CORPORATIONS. What are, see Creation of Corporations. Kinds of, see Kinds of Corporations. CORPORATORS. Wh^ may be, see Creation of Corporations, Ckympetency of, as witnesses, see Evidence. See generally Members, Stockholders. COSTS. Security for, on appeal, see Appeal, II. In proceedings to assess damages for land taken under the right of eminent dom- ain, see Eminent Domain. Foreign corporation — Sheriff's interpleader. — ^Manhattan Co. v. Gran- ley, 1882, C. P., 11 W. N. C, 255. A foreign corporation -which is the defendant in an issue on a sheriflf 's interpleader will not be compelled to give security for costs. 110 COSTS. — COVENANT. [Part I. Witness fees and mileage of corporation ofS.cers. — First National Bank of Mount Joy u. Greider, 1873, C. P., Lancaster, 5 Lane. B., 1; 2 Chest. Co., 204. Officers and employees of a plaintiff corporation, when sub- poenaed and compelled to attend court, are entitled to witness fees and mile- age, to be taxed as costs. See also Kafroth v. Beading & Columbia E. Co., 1872, C. P., Lancaster, 4 Lane. B., No. 13; Salfuon Creek Co. v. Dusenberry, C. P., Forest, 2 Chest. Co., 205; Wilson v. Mut. Fire Ins. Co., C. P., Montgomery, 1 C. C. K., 11. Susquehanna Mutual Fire Ins. Co. v. Commercial Ins. Co., 1886, C. P., 18 W. N. C, 132. The officers of a plaintiff corporation are entitled to witness fee§ and mileage though appearing on behalf of the plaintiff. McFarland v. Ligonier VaUey E. Co., 1885, C. P., Westmoreland, 42 L. Int., 56. The officers and directors of a corporation defendant are not entit- led to costs as witnesses unless duly subpoenaed as witnesses merely. COVXSEL, rEES. Act of May 3, 1866.— North Penn. Railroad Co. e. Adams, 1867, 4 Sm., 94. The Act of May 3, 1866, requiring corporations to pay counsel fees of plaintiffs in suits against them, is not applicable to an action brought to re- cover the amount of coupons unpaid for want of funds, where the company subsequently offered to pay the amount of the coupons without interest, and the suit was defended on the ground that the coupons had not been presented for payment. . COUNTY XAXES. See Taxation. COUPONS. See Bonds. coirinr. iSee Jurisdiction. COURT AND JURY. Promnees of, see Trial. Province and powers of court in proceedings by mandamus, see Disfranchisement, Mandamus; in proceedings to assess damages for land taken under the right of eminent domain, see Eminent Domain. COVENANT. See also Seal. Action of,— Farmers' &c. Turnpike Co. v. McCullough, 1855, 1 C 303 An action of covenant will lie against a corporation on a written agreement sealed with its common seal. Corporate seal.— Crossman v. Hilltown Turnpike Co., 1857 3 Gr 225 In an action of covenant against a corporation the seal upon the instrument on which suit is brought must be proved to be the seal of the corporation. Part J.] COVENANT. — CREATION OP CORPORATIONS. Ill A corporation may adopt the seal of another, or an ink impression, but such adoption must be proved. To this it is not necessary to show a resolution of the directors. Whether or not the seal is that of the defendant corpora- tion is a question for the jury. Contract by agent of association afterward incorporated— Assump- sit.— Swisshelm«.Swissvale Laundry Co., 1880,37L. Int., 514. Acontract un- der seal to sell land was made between the owner and a member and agent of an association intending at the time to become a corporation and shortly after- ward actually receiving its charter. The agent executed the contract as for himself alone although the intention of all parties was that the purchase should be by and for the association. The corporation accepted the contract in parol and entered into possession of the land. Held that the corporation was liable in assumpsit for the stipulated price. COVBRXVRB. Subscription to stock iy married woman, see Subscription. CREATION OF CORPORAXIOKS. I. FOR WHAT OBJECTS CORPORATIONS WILL BE CREATED. II. THE APPLICATION FOR A CHARTER. III. WHAT PROVISIONS MUST BE MADE AND WHAT MAY BE MADE IN PROPOSED CHARTER. IV. MISCELLANEOUS. As affecting contracts made before incorporation, see also Contracts, II. Denial or impeachment of corporate existence, see Charter, IV. Offwdgn corporations, see Foreign Corporations. Creation of more than one charter by one act of Assembly, see Constitutional Law, II. Clearness in title of incorporating statute, see Id. I. For 'What Objects Corporations -will be Created. Objects must be definite. — Independent Order of The Silver Star, 1872, C. P., Luzerne, 1 Luz. Leg. Reg., 768. The objects for which a proposed corporation is to be chartered must be clearly specified and particular- ized; "benevolence and to encourage and foster among its members charity and self-improvement" is, standing alone, too indefinite a designation of objects to warrant an approval of the application. National Literary Assn., 1858, 6 C, 150. An application for a charter under the Act of April 6, 1791, must so far define the objects of the associa- tion as to satisfy the court that they fall within the meaning of the law giv- ing the jurisdiction to incorporate, and to enable the associates to learn de- finitely the purposes of the corporation and their rights as corporators. Journalists' Fund, 1871, C. P., 8 Phila., 272, 28 L. Int., 220. A charter will not be approved which sets forth among its objects, "such other pur- poses as may be agreed upon by the association in the future." 112 CREATIOX OF COKPORATIONS. [Part I. "Political purposes." — Alplia Association Charter, 1884.C. P.,15W. N.C., 208. A charter setting forth that the proposed corporation was formed, inter alia, for " political " purposes, will not be granted. Protecting members' commerce etc.— Charter, P. L. P. A., C. P., Lackawanna, 5 Luz. Law T., N. S., 7. Charter providing that the pur- poses of the proposed corporation shall be "the protection of the commerce of its members," "the maintenance of social enjoyments," and "the moral ad- vancement of its members," granted. Approval of charter by Supreme Court under Act of 1791— Medical college— Degrees.— Medical College of Philadelphia, 1838, SWhart., 445. Under the Act of 1791 the Supreme Court had no power to approve a charter conferring powers not specified in that Act; such a charter could be obtained only from the Legislature. A charter conferring upon a medical college power to grant degrees in medicine could not be granted under the Act. Electropathic Institute, 1879, C. P., 9 W. K. C, 31, 14 Phila., 128, 37 L. Int., 262. A charter mU not be granted to an institute for instruction in electricity as a curative agency, with power to confer degrees intended to entitle their holders to practice medicine, where the provisions of the charter require a knowledge of only electricity, galvanism and magnetism for the obtaining of such degree. To permit the granting of such degrees would be in contravention of the Act of March 24, 1877 (P. L., 42). Mining company. — Lancaster Mining Co., 1858, 6 C, 151. The Su- preme Court has no power to incorporate a mining company. Political club. — Union League of Delaware County, 1881, C. P., Dela- ware, 1 Del. Co., 21. Charter for a party political club refused. Under Act of April 12, 1859— Dealing in money.— Harmony Building Association, 1865, C. P., 6 Phila., 63. The Act of April 12, 1859 does not authorize the erection of corporations for dealing in money. Under Act of Feb. 18, 1869— Dealing in real estate for benefit of stockholders alone. — Homestead Building Association, 1874, C. P., 10 Phila., 106, 31 L. Int., 13. Under the Act of February 18, 1869 (P. L. 201), the courts will not approve a charter for a company to trade in real estate for the benefit of the stockholders alone. The corporations for whose crea- tion that Act provided were intended to be quasi-charitable institutions. Marriage association. — Mutual Aid Association, 1881, 15 Phila., 625, 38 L. Int., 423, 10 W. N, C, 468. A charter will not be granted to an as- sociation whose object is the pecuniary aid of those of its members who may marry, by an assessment upon the rest. See also Helping-Hand Marriage Association, 1881, 15 Phila., 644, 38 L. Int., 423, 2 Schuylk. Leg. Eec, 170 ; Quaker City Marriage Benefit Asso- ciation, 1881, C. P., 10 W. N. C, 467. Dairy company. — ^Richboro' Dairymen's Assn. u. Ryan, 1885. C. P., 42 L. Int., 268, 2 Cheat Co., 541, 33 Pitts. L. J., 36. A company for carrying on the dairy business may be incorporated as a company for manufacturing purposes under the Act of 1874. II. Tlie Application for a Charter. As to statement of objects of proposed corporation, see I. Strict compliance with requirements. — Philadelphia Artizans' Insti- tute, 1871, C. p., 8 Phila., 229, 28 L. Int., 13. A charter will not be granted unless the provisions of the law with respect to its contents and the applica- tion are strictly complied with. And see following cases generally. Signature.— St. Stephen's Church, 1865, C. P., 6 Phila., 64, 22 L. Int., 357. A charter will not be approved when it is not signed by the applic- ants. Enterprise Beneficial Assn., 1875, C. P., 10 Phila., 380, 32 L. Int., 82. Three of the signers must be citizens of Pennsylvania. Part J.] CREATION OP COEPOEATIOIfS. 113 Omission of signature— Act of May 11, 1874.— Workingmen's Build- ing Association i'. Coleman, 1879, 8 W. N. C, 17. The Act of May 11, 1874, providing for the validating of defective charters, validates a charter of a building association intended to be incorporated under the Act of April 12, 1859, but the application for which was not signed by the required number of persons. Must be written on single sheet.— Stevedores' Association, 1880, C. P., 14 Phila., 130, 37 L. Int., 262. A charter oflferred for the approval of the court should be written upon a single piece of paper or parchment. Alexander Presbyterian Church, 1854, 6 C, 154. The court will not ap- prove a charter written on several sheets of paper and sewed together ; it must be written on a single sheet. Interlineations. — Philadelphia Artizans' Association, 1871, C. P.,8Phila., 229, 28 L. Int. , 13. An important alteration or correction of the charter cannot be interlined. See also United Daughters of Cornish, 1860, 11 C, 80. Notice — Contents of,— Advertisement.— Parrish Church, 1874, C. P., Luzerne, 3 Luz. Leg. Eeg. , 128. A notice of an intention to apply for a charter, under the Act of AprU 29, ,1874, must state when the application is to be made, and must set forth with reasonable accuracy the character and obj ect of the corporation as it is expressed in the body of the proposed charter. St. Paul School Association, 1879, C. P., Schuylkill, 1 Schuylk. Leg. Eec, 133. Where an application for a chapter is made in open court and duly published in two newspapers and actual notice given to an exceptant, the. application will not be refused upon the ground that the published notices contained no statement of the time and place of the intended application. Enterprise Mutual Beneficial Association, 1875, C. P., 10 Phila., 380, 32 L. Int., 82. The advertised notice of an intended application for a charter should specify particularly the time and place of such intended application. Same — ^Fldladelphia — Legal Intelligencer. — Application for Charter, 1876, C. P., 33 L. Int., 158. For purposes of the publication of notice of in- tended applications for charters, the Legal Intelligencer is not a newspaper of general circulation. The notice must be published in two newspapers and the Legal Intelligencer. See also Enterprise Beneficial Assn., 1875, C. P., 10 Phila., 380, 32 L. Int., 82. Lodgment in prothonotary's office. — Charter of Church of The Holy Communion, 1880, C. P., 8 W. N. C, 357, 37 L. Int., 124. Under the Actof April 29, 1874 the proposed charter of an intended corporation should be lodged in the prothonotary's oflSce. The public have a right to inspect it. Alteration after signature. — Alsatian Beneficial Association, 1860, 11 C, 79. No word can be added to a charter, as in filling up blanks, after it has been signed by the associates, preparatory to submission for ap- proval. Rejection — ^Leave to withdraw. —Philadelphia Relief Association, 1879, C. P. 7 "W. N. C, 146. Where an application for a charter has been refused, leave' vrill not be granted to vnthdraw the application. Contents of application — Statement of place of business. — Enterprise Beneficial Assn., 1875, C. P., 10 Phila., 380, 32 L. Int., 82. An application for a charter must state the place where the business of the corporation is to be transacted ; a statement of the intended location of its "office" is not sufficient. . ,. . See further as to contents of statements m application, III. III. 'Wliat Provisions must toe DXade, and 'wliat May toe Made in Proposed Ctaarter. Provisions as to membership. — Butchers' Beneficial Association, 1860, 11 C. 151. The right of membership in a proposed corporation must be con- 8 — MtTKPHY. 114 CEEATION OF CORPOKATIONS. IPart I. fined by the charter to citizens of the State ; it cannot be extended to citi- zens of the United States. See also Mulholland Benevolent Society, 1873, 10 Phila., 19, 30 L. Int., 85 ; Journalists' Fund, 1871, 8 Phila., 272, 28 L. Int., 220 ; Phila. Artizans' Assn., 1871, C. P., 8 Phila., 229, 28 L. Int., 13. Alsatian Beneficial Association, 1860, 11 C, 79. All the inembeis of a corporation chartered under the Act of April 8, 1833 must be citizens of the United States and of Pennsylvania. A clause in the charter authorizing persons who have declared their intention of becoming citizens to become members is illegal. St. Paul's School Association, 1879, C. P., Schuylkill, 1 Schuylk. Leg. Eec, 133. The proposed charter of a corporation of the first class under the Act of 1874 need contain no provision that all its members shall be citizens of the Commonwealth. Comm. V. O'Donnell, 1847, Brightly, 111. The Legislature may incor- porate aliens. Minors.— Patterson Memorial Church, 1884, C. P., 41 L. Int., 253. A charter -will not be approved if it confers membership and voting power upon minors. Provisions as to disfranchisement. — Butehers' Beneficial Association, 1861, 2 Wr., 298. A charter which contains an indefinite statement of the offences which shall constitute sufficient ground for expulsion, as that any member may be expelled who commits any misdemeanor or any other act "that may prove injurious to his character or standing as a member of the association," will not be approved. PhUa. Artizans' Assn., 1871, C. P., 8 Phila., 229, 28 L. Int., 13. A charter which leaves the causes and manner of effecting expulsion to be deter- mined by the by-laws will not be approved. Sarsfield Beneficial Society, 1865, C. P., 6 Phila., 64, 22 L. Int., 357. A charter containing a provision for the expulsion of any member " who shall be guilty of any practice injurious to himself, his family or society" will not be approved. The provision is too indefinite and uncertain. Butehers' Beneficial Association, 1860, 11 C, 151. An article in a charter giving power to the corporation to expel any member who shall be "guilty of actions which may injure the association" will not be approved ; the power conferred is too indefinite. Beneficial Association of Brotherly Unity, 1861, 2 Wr., 299. A charter which gives to a majority of the members of the corporation power to expel any member "guilty of any offense against the law" will not be approved. Journalists' Fund, 1871, C. P., 8 Phila., 272, 28 L. Int., 220. A charter will not be approved where there is no provision for trial before expulsion from membership. Mulholland Benevolent Society, 1873, 10 Phila., 19, 30 L. Int., 85. A charter will not be approved which contains a provision that membership shall be forfeited upon enlistment in the army or navy. By-laws.— Supreme Temple, Order of Plato, 1885, C. P., 42 L. Int., 444. The powers asked for by a proposed charter must be precisely and accurately defined in the charter itself. They cannot be left to be determined by the form of constitution which the corporation may afterward adopt. Stevedores' Association, 1880, C. P., 14 Phila., 130, 37 L. Int., 262. A charter offered for the approval of the court should not contain provisions for the internal management of the corporation which are properly the sub- jects of by-laws. Eedmen's Association, 1875, C. P., Crawford, 10 Phila., 546, 31 L. Int., 254. The document presented for examination by the court upon applica- tion for a charter should not consist of the association's proposed by-laws. Phila. Artizans' Assn., 1871, C. P., 8 Phila., 229, 28 L. Int., 13. A charter will not be granted where the rights and duties of members, the powers and functions of the officers, the causes and manner of effecting expulsion or the mode in which the property of the corporation is to be disposed of are left to be determined by the by-laws. Part Z] CEEATIOK OF COBPOEATIONS. 115 St. Paul's School Association, 1879, C. P., SchuylkiU, 1 Schnylk. Leg. Eec, 133. The proposed charter of a corporation of the first class tmder the Act of 1874 need contain no provision for amendment or the enactment of by-laws. Same— Provision as to consistency with law etc. — German Beneficial Assn., 1858, 6 C, 155. The article giving the power of making by-laws must provide that they shall not be inconsistent with the Constitution and laws of the United States or of this State, or with the provisions of the charter. See also Butchers' Beneficial Assn., 1860, 11 C, 151 ; National Literary Assn., 1858, 6 C, 150. Corporate name— Similarity to tliat of existing body.— First Presby- terian Church of Harrisburg, 1858, 2 Gr., 340. A charter will not be approved where the name for the proposed corporation is so like that of another corp- oration of the same kind, in the same place, that one may be taken for the other. See also First Baptist Church, 3 Hazard's Penna. Reg., 225; lb., 75. In re Sons of Progress, 1883, C. P., 14 W. N. C, 31. Where the only dis- tinction between the name of an existing corporation and the proposed name of a company applying for a chapter is the addition of a merely descriptive word, e. g., "Independent," to the proposed name, the charter will not be granted. In re Societa Militare Italiana etc., 1887, C. P., 3 C. C. R, 441. That the proposed title for a beneficial and social corporation was made up by joining exceptants' unincorporate name to what was the unincorporate name of the applicants without authority tcova, and contrary to the wishes of exceptants, and to prevent the latter from obtaining a charter under their own original unincorporate name, is not alone sufiScient ground to prevent the approval of the charter. As to change of name, see Charter, III. Amendment of charter. — Journalists' Fund, 1871, C. p., 8 PhUa., 272, 28 L. Int., 220. A proposed charter wherein there is no provision requiring amendments thereto to be made with the approval of the court, or wherein there is a provision implying that amendments may be made without such approval, will not be granted. See also United Daughters of Cornish, 1860, 11 C, 80. Limitations as to property. — Journalists' Fund, 1871, C. p., 8 Phila., 272, 28 L. Int., 220. A charter wUl not be approved when it contains no limitation of the amount of the real and personal estate to be held by the proposed corporation. See also Phila. Artizans' Assn., 1871, C. P., 8 Phila., 229, 28 L. Int., 13. Patterson Memorial Church, 1884, C. P., 41 L., Int., 253, A charter should contain a limitation upon the amount of the yearly income to be derived by the corporation from sources other than real estate. St. Paul's School Association, 1879, C. P., Schuylkill, 1 Schulk. Leg. Eec, 1 33. The proposed charter for a corporation of the first class under the Act of 1874 need not contain any limitation upon the amount and value of the real estate to be held by the coporation. The limit is contained in the Act itself Compliance with intention of founder.— Foulke and Long Institute, 1884, C. P., 41 L. Int., 488. A charter for a proposed corporation to be founded under the provisions of a will which appoints the character of its constitution will not be approved if it contains provisions inconsistent with the intention of the testator. Affirmed in Vaux's Appeal, 13 Out., 497. Same— Number of trustees.— St. Stephen's Church, 1865, C. p., 6 Phila., 64, 22 L. Int., 357. A charter will not be approved when the number of trustees proposed is indefinite. See also United Daughters of Cornish, 1860, 11 C, 80. Dissolution. — United Daughters of Cornish, 1860, 11 C, 80. A provision that the corporation shall not be dissolved while nine members -remain is illegal. 116 CREATION OF COEPOEATIOJfS. [Part I. German Beneficial Assn., 1858, 6 C, 155. A proposed charter the terms of ■which prevent a majority of the members from dissolving the corporation ■will not be granted. Club elections. — Comm. v. Conover, 1873, 10 Phila., 55, 30 L. Int., 200. A court of common pleas cannot Incorporate a club ■with a provision that each share of stock shall represent one vote. The courts of common pleas can confer only such povyers and pri^vileges as by the common law were necessary to constitute a corporation, and at common law corporate elections and questions for the decision of the corporators were decided by a majority of the members. Rights and duties of officers and members— Property.— Phila. Arti- zans' Assn., 1871, C. P., 8 Phila., 229, 28 L. Int., 13. A charter wiU not be approved where the rights and duties of members, the powers and functions of the officers or the mode in which the property of the corporation is to be disposed of are left to be determined by the by-laws. IV. miscellaneous. Jurisdiction— Supreme Court.— Tara Benevolent Society, 1874, D. C, 9 Phila., 287, 30 L. Int., 46. The Supreme Court will not entertain jurisdic- tion of an application for a charter. See also I. When corporate existence begins. — Gmbb v. Mahoning Navigation Co., 1850., 2 H., 302. A corporation comes into being at the moment when the letters patent are issued ; the subsequent formal organization by the election of ofiicers is not necessary to perfect the corporate existence. Same— Accep-tance of charter. — Mutual Fire Ins Co. t. Stokes, 1872, 9 Phila., 80, 29 L. Int.. 100. A corporation cannot legally come into exist- ence unless its charter has been accepted. But it is not necessary that the acceptance should have been by a ■written instrument, nor even by a formal vote. An acceptance by directors, acquiesced in by the stockholders, by an approval of the expenditure of money in obtaining the charter, is sufficient. See further Acceptance and Assent. Act of May 1, 1868— Begistry of name in Auditor General's Office.— Association v. Fenner, 1879, C. P., 13 Phila., 107, 36 L. Int., 124. The first Section of the Act of May 1, 1868, providing that "no company . . . . shall go into operation without first having the name of the company etc. registered in the Office of the Auditor-General,'' is directory only. Implied incorporation— Act of March 28, 1808.— Myers d. Irwin, 1816, 2 S. & E., 367. The Act of March 28, 1808, "relating to the association of individuals for the purpose of banking," did not impliedly incorporate existing associations. Same— What is not,— -La-w Library.— Craig v. Lilly, 1887, 44 L. Int., 342, low. N. C, 375. An act of Assembly authorizing the appropriation of certain public moneys under the supervision and dirertion of a committee appointed by court from time to time to the purchase of law books for the use of the court and the bar of a certain county, does not by implication in- corporate the "Law Library" so established. Same— Irregularity in incorporation- Waiver by Commonwealth.— Comm. V. Westchester Railroad Co., 1855, 3 Gr., 200. No form of words is necessary to create a corporation ; it may be created by implication from the grant ot corporate powers and privileges by statutes subsequent to an ori- ginal incorporation which may not have been technically valid. In such case the Commonwealth, if not technically estopped from denying or forfeiting the corporate existence claimed, will be held to have vraived by such subsequent recognition any irregularity in the original incorporation. Incorporation by purchase under Act of April 7, 1870.— Comm. v. Pennsylvania & Western Eailroad Co., 1884, 41 L. Int., 448. A sale of the Part J.] CEEATION OF COEPORATIONS. 117 property and franchises of a corporation upon a fi. fa., under the Act of April 7, 1870, passes to the purchaser the essential fraaichise, the right to he a corporation. Incorporation by purchase of corporate property and franchises.— Wellshorough &c. Plank Road Co. v. Grifan, 1868, 7 Sm., 417. A successor by purchase to the rights and property of a corporation, not under the Act of April 8, 1861, is a distinct person, notwithstanding an act of Assembly pro- viding that upon snch sale the rights and franchises of the corporation should be as fully vested in the purchaser or purchasers as if he or they had been the original corporators, and that from thenceforth all the provisions of the act of incorporation, ■with the corporate powers conferred and the several laws of the Commonwealth in relation thereto, should be for the benefit of the said purchaser or purchasers. An action, therefore, cannot be main- tained against the corporation for injuries resulting after such a sale from the purchaser's neglect to keep the former works of the company in proper repair. Stewart's Appeal, 1872, 22 Sm., 291. Where the purchasers at a fore- closure sale of the property of a corporation become, by virtue of a special statutory provision, a corporation, they do not become liable for the debts of the original corporation. Snch liability is not imposed by an agreement made by the stockholders in the original corporation subseguently to the pur- chase, to become stockholders in the new corporation without the payment of any money. See further Franchises. Organization— Fraud hy subscription commissioners.— Comm. v. McKean County Bank, 1858, 8 C, 185. Where a majority of commissioners appointed by act of Assembly to organize a corjMjration enter into a fraudu- lent agreement with a citizen of another State to transfer the franchise to him, or to obtain for him a control of the majority of the capital stock, re- fusing to give to all who choose an equal chance to subscribe, the minority may separate from them and proceed "with the organization as contemplated by the statute, and the letters patent issued to them are valid. Same — ^Injunction to restrain, — ^Mitcheson v. Harlan, 1859, C. P., 3 Phila., 385, 16 L. Int., 148. Equity has no power to restrain the organiza- tion of a corporation to which letters patent have been issued. Fully estab- lished fraud in the sale of stock by the commissioners appointed to organize the company cannot give such power. Irregularities in organization. — Comm. v. Central Passenger Railway Co., 1866, 2 Sm., 506. When a corporate franchise is already in existence, but particular modes of procedure are provided by statute for organization — as after the sale of a railway belonging to a corporation — such acts are not conditions of corporate being ; errors therein or failure to strictly conform to the prescribed modes can at the utmost enable the Commonwealth to retake the franchise ; it cannot entitle her to a judgment that the franchise has no existence. Incorporation hy two States. — Charter from one only.— Wharton v. Hudson, 1832, 3 E., 389. Where the Legislatures of each of two States pass an act to incorporate a company, appointing jointly commissioners to obtain subscriptions, and enough subscriptions are obtained to entitle the company to letters patent from one of the States, but no charter is obtained from the other the procurement of a charter from one State is not a defence to an ac- tion to recover subscription money on the ground of a feilure of considera- tion. Incorporation of minority of association— Property rights. — Comm. V. Jarret, 1822, 7 S. & E., 459. A minority of individuals forming a volun- tary association cannot by obtaining a charter of incorporation gain any right as a corporation, to property held in trust for such association. See also Henry v. Dietrich, 1877, 4 W, N. C, 487. 118 CEEATION OF COBPOEATIONS. — CEEDITOES. [Part I. Minute book as evidence of acts necessary to corporate existence.— Grant v. Heniy Clay Coal Co., 1876, 30 8m., 208. The minute book of a corporation may be received in evidence for the purpose of showing the acta of the corporation necessary to be done in order to its corporate existence. CUI^VERT. Duty of corporation to construct, see EmmetU Domain. CUMULATIVE VOXinC See Elections. CR.EDIXOR.S. As affected by reorganieation of corporaiion, see Beorganizcction. Assignment for beneJU of, see Aasignment, I. Attachment by, see Attachment. Attachment of deposit in hands of corporation's credtUrr, see Id. Bill by: for discovery, see Discovery; against directors for negligence, fraud etc, see Action and Suit ; to compel payment of subscriptions, see Stock and Stock- holders, Subscription. Capital of corporation as trust fund for, see Trust and Trustee, Stock and Stock- holders, Dissolution, Insolvency. Corporation as creditor of its stockholders, see Lien. Formation of corporation by creditors of insolvent firm, see Subscription. Impeachment by, of mortgage by corporation, see Mortgage. Injunction by, against corporation's issue of bonds, see Injunction, Bonds. Liability of stockholders to creditors Of corporation, see Stock and Stockholders, Subscription. Members, stockholders, directors and officers as creditors of corporations, see those several heads. Mortgage creditors, see Mortgage. Of slockholders, see Lien, Subrogation, Principal and Surety. Priority in executions, see Execution, Seguestration. Bemedies Of, see Action and Suit, Mandamus, Beceiver, Quo Warranto. Beorganizatimi trustee as creditor, see Cantributum. Bights of: in executions, see Execution; upon insolvency, see Insolvency, Assign- ment, I; in sequestration, see Execution; upon dissolution, sec- Dissolution. Stockholders are not creditors of other stockholders : see Fraud, Subscription. Taxation of corporation bonds in hands of, see Taxation. See also Bankruptcy, Bonds, Constitutional Law, Guaranty, Set-off. I'art Z] CHIMIN AI, LAW. — CUTTING TIMBEE. 119 CRimiNAL LA'W. Oonapiracy to preveja expdled corporator from regaining his righU, see Con- spiracg. Embezzlement of funds furnished to corporate officers to further criminal purpose, see Forfeiture. Fact of incorporation as necessary to sustain indictment, see Charter, IV, 2. Falsification of papers hy directors, see Books and Seeords. Incompatible offices under Section 66, (Mminal Code, see Offi^xrs. Indictment for maintaining nuisance, see Nuisance. CROPS. Injury to, by congtraction of corporate works, see Eminent Domain. CUSTOM. Of mill, loss of, see Eminent Domain. ciisTom a?;d usage. As to construction of charter jointly granted by two States, see Charter, II. As evidence to disprove corporation's liaT>ilit7.—Meighen v. The Bank, 1855, 1 C, 288. Evidence of the customs and usages of a corporation, although not competent of itself to disprove a liability of the corporation, is admissible in explanation or corroboration of a &ct already in evidence. As to corporation's lien upon stock for holder's indebtedness.— Mor- gan V. Bank of North America, 1822, 8 S. & R., 73. A by-law or a vsage of a corporation forbidding the transfer of stock by a holder indebted to the 'corporation is valid as against a stockholder to whom such a usage was known, and against his voluntary assignee for creditors. In corporate elections. — Juker v. Comm., 1853, 8 H., 484. Where a charter is sUent upon the mode of conducting elections and no by-law has been adopted regulating that subject, the well established usage of the corp- oration in holding elections is binding. See also Seventh-Day Baptists of Ephrata, 1883, O. C, Lancaster, 14 Lane. B., 198. Weckerly v. Geyer, 1824, 11 S. & R., 34. In an action against the officers who conducted a church election for refusing to receive the plaintiff's vote, upon the ground that he was not qualified, where evidence of the practice at former elections has been admitted without objection, it is not error for the court to charge the jury that such evidence is admissible to show the true construction of the charter of the church. CUTTING TIMBER. jSfee Trespass. 120 DAIEY COMPANY. — DEBTS. {_Pari 2' DAIRY COMPANY. See Creation of Corporations, DAmAGES. Far land taken under the right of eminent domain, see JEMnent Domain. ' For breach of contract of subscription, see Subscription. For refusal to permit stockholder to subscribe for additional stock, see Id. For refusal to permit transfer of slock, see Stock and Stockholders. For breach of official bond, see Bond, IV. For refusing to receive corporator's vote, see Elections. For cutting of timber, see Trespass. See also Liabilities and Duties of Corporations. nAJSKXVTfl ABSaVB IXJVRIA. See Eminent Domain. DAUPHIN COUNTY. Court of Common Fleas of, see Jurisdiction, Taxation. DEBTOR AND CREDITOR. See Creditors. DEBTS. Due by corporations : liquidation, on insolvency, of debt due to oj/icer, see In- solvency ; pmrchase of, by directors or officers, see Directors, Officers; fraudu- lently contracted in corporate name by directors, see Fraud, Injunction; indiv- idual liability for, see Stock and Stockholders.; liability for, of successor to corporate property and franchises, see Liabilities and Duties of Corporations. Due to corporations : by stockholders, see Lien, Stock and Stockholders ; commu- tation of, for real estate, see Powers of Corporations ; extinguishment of, see Extinguishment; by directors, commutation of, see Directors; release of by directors or officers, see Directors, Officers; supervision of collection of, by officers, see Action and Suit, I, Officers. Promise to pay another's, see Frauds. See also Assignment, Attachment, Bankruptcy, Creditors, Limitations. Illegal increase of indebtedness by company jointly incorporated by two States.— Rothschild v. Eochester & Pittshvirgh E. Co., 1886, C. P., Elk, 1 C. C. R., 620. An increase of indebtedness made in violation of Part /.] DEBTS. — DECREE. 121 Section 7, Article XVI of the State Constitution by a corporation chartered by the joint action of this and another State, is invalid as to Pennsylvania stockholders in respect of .the property and franchises of the company in this State. A stockholder in sach a corporation who, by accepting and disposing of one of the bonds given for such increase, has ratified the issue is not thereby barred from asserting his interest as a stockholder in the corporate property in Pennsylvania against one basing his claim to it upon such illegal increase of indebtedness. Mortgage created in violation of provisions of Act of 1874r— Sci. fa. — ^Defence. — Roberts v. Crystal Spring Water Co., 1881, 0. P., Chester, 1 Chest. Co., 437. In an action of 8cir« faeias sur mortgage for land conveyed by the plaintids, upon a purchase-money mortgage, to the corporation de- fendant, the latter cannot set up as a defence that the mortgage was made without any compliance with the requirements of the General Corporation Law of 1874, as to the increase of corporate indebtedness. And see, as to increase of capital generally, Increase of Capital. DECEDENT'S ESTATE. Taking devised land under right of eminent domain, see Eminent Domain. DECEIT. See Fraud. DEClrARATIOX. In evidence, see Evidence. In pleading, see Pleading; in proceedings to recover damages for corporation's entry on land, see Eminent Domain. Of corporation's intention to do injurious act, see Injunction. DECREASE OF CAPITAI,. See Taxation. DECREE. Joint decree againgt directors and officers of dissolved corporation to enforce re- covery of misappropriated assets, see Dissolution, Fraud. Beaming earpeOed corporator, production of, see Disfranchisement. When dissolution vnll he decreed, jwrisdietion etc., see Dissolution. 122 DEED. — DELAY. [_PaH I. DEED. See Mortgage, Seal. Putting execution of corporation's deed in issue, see FleaMng. Capacity of corporation to receive conveyance of real estate, see Powers of Corp- orations. DE FACTO OFFICERS. See Officers, Directors, Dissolution. DEFAULT. Judgment by, see Judgment. DEFECTS. In corporate works, see Eminent Domain, Negligence. In service of process, see Service. DEFERRED STOCK. Issne of irredeemable bonds at discounl^-Usuiy.— Philadelphia & Beading Eailroad Co. v. Stichter, 1882, 11 W. N. C, 325, 29 Pitts. L. J., 379. A corporation may, under a general power to borrow money, issue ir- redeemable bonds, at a large discount, not entitled to interest until after the common stock had received a dividend of six per cent., then tb take all the revenues of the corporation up to sue per cent., and then to rank with the common stock. Such a method of borrowing cannot be objected to on the ground that it is usurious or that it is an issuing of deferred stock. See contra McCalmont v. Philadelphia & Beading Bailroad Co., 1881, U. S. C. C, low. N. C, 338. DEGREES I]K IMEDICIBIE. When institution will not be incorporated with power to confer, see Creation, of Corporations, I. DELAY. See Laches, Limitations. Part J.] DKLBGATION OP POWEE. — DEMAND. 123 DBLBGAXIO?! OP PO'WER. To agents, see Agency. Of eminent domain, to corporations, see Eminent Domain. Of altering citarter, to directors, see Directors. To, or by directors, in general, see Id., Officers. Of power of expvMon, see DisfrancMsemmt, DEIossess power to remit rent, if the purposes of the association require it; Establishment of agencies for stock transfer.— Bank of Kentucky ». Schuylkill Bank, 1846, C. P., 1 Parsons, 180. Where a charter authorizes Part /.] DIEECTOES. 131 the transfer of stock at snch places as the president and directors shall by their by-laws prescribe, and the president and directors pass p by-law pro- viding that the stock shall be transferable at A. and "in other places where the bank shall appoint agents " for the purpose, a resolution of the president and directors establishing such an agency at a particular place is a valid ex- ercise of the authority conferred by the charter and by-law. Affirmed by Supreme Court. Permission of officer's delegation of power.— Middletown Turnpike Co. V. "Watson, 1829, 1 R., 329. The treasurer of a corporation has no right to delegate his powers to another agent of the corporation without the per- mission of the board of managers. Power of amotion. — Batterson v. Thompson, 1871, C. P., 8 Phila., 251, 28 L. Int., 172, 3 Leg. Gaz., 173. A power of amotion does not pass by a grant of power to elect, as incidental to the latter, but must be expressly re- posed in the electing body by the charter. Appointing place of corporate election— De facto directors.— Comm. V. Smith, 1863, 9 Wr., 59. Where neither the charter nor by-laws fix the place at which the regular corjjjorate elections shall be held, it may be fixed by a board of managers de facto. Confession of judgment against corporation.— Freeman v. Plaindealer Printing Co., 1880, C. P., Luzerne, 9 Luz. Leg. Reg., 37. The manager of a company incorporated under the Act of 1874, cannot confess a judgment against the company without authority from the board of directors. Power to pass by-law providing for admission of members.— Comm. V. Gill, 1837, 3 Whart., 228. Where a corporation is in the nature of a char- ity, as in the case of a savings institution, intended for the benefit of the de- positors, and the charter is to be construed as providing that the stockholders are not, as such, entitled to participate in its management, a by-^law passed by the directors, declaring that every stockholder shall be a member of the corporation and upon a transfer of such stock shall cease to be a member, is void notwithstanding that the directors are empowered by the charter to ' ' pro- vide for the admission" of members ; or, if the power of the directors to elect members be conceded, such a by-law is not a proper exercise thereof. Abridgement of right of voting by proxy. — Comm. v. Coxe, 1873, C. P., Schuylkill, 1 Leg. Chron. R., 89. The right of voting by proxy cannot be abridged by a by-law passed by the board of directors without the knowl- edge or consent of the stockholders, imposing upon it conditions not required by the charter. Preference in insolvency. — Hopkins' Appeal, 1879, 9 Nor., 69. The officers and directors of an insolvent corporation cannot gain a preference over other creditors of the corporation by executing notes of the corporation in their own favor, obtaining judgment by default and issuing execution upon them. Such conduct of the officers is a constructive fraud ; and, more- over, under the Act of April 7, 1870, in such case distribution is to be made as in cases of insolvency. Resolution prohibiting transfer of stock — ^Retroactive effect. — Steam- ship Dock Co. V. Heron, 1866, 2 Sm., 280. A resolution of a board of direct- ors prohibiting a transfer of stock by anyone indebted to the corporation can- not be given a retroactive effect. Calls for instalments of stock after corporation's assignment for creditors. — Germantown Railway Co. v. Fitler, 1869, 10 Sm., 124. A corp- oration is not necessarily dissolved by insolvency, and after it has made an assignment for its creditors, the directors still have power to make calls for unpaid instalments of stock and to forfeit the stock upon failure to pay. Eight to inspect corporation's books— Mandamus.— Comm. v. Coit, 1884 C. P. 15 W. N. C, 270. A writ of mandamus will lie to compel the officers of a corporation to permit a director to have free access to the corp- oration's books and papers in order that he may properly fulfil his duties 132 DIEECTOES. IPart I. aa a director. In such writ the corporation must be joined as a defendant ; but its non-joinder is no ground for quashing the writ ; leave will be given to amend. Loan by director for payment of fraudulent dividend— Claim for, upon assignment. — Kisterbock's Appeal, 1866, 1 Sm., 483. A director of » corporation long previously rendered insolvent by the acts of the directors in fraudulently declaring dividends out of the capital is not entitled to re- ceive from the assets of the corporation in the hands of its assignee for the benefit of creditors any part of a loan to the corporation made by him to en- able it to pay a dividend so fraudulently declared, until the stockholders (who became such by making deposits) are fully paid, irrespectively of the time of their deposits with relation to the fraudulent dividend for which the loan was made. Director as winding-up trustee— Injunction.— Bloom «. The Banking Co., 1877, C. P., 4 W. N. C, 138. An injunction will be granted to restrain the election of trustees from among the stockholders and directors of an in- solvent corporation to wind up its affairs, and the court will appoint a re- ceiver. Foreign attachment by director— Dissolved corporation— Inter- State comity. — Hintermeister ». Ogan Co., 1885, C. P., Luzerne, 33 Pitts. L. J., 365, 3 C. P. Eepr., 65, 74, 76, 1 C. C. E., 466. A foreign attachment a^inst a corporation chartered, dissolved and placed in the hands of a re- ceiver by another State cannot be maintained by one who was, at the time of such dissolution and appointment, not only a citizen of such other State, but a director of the company, and therefore bound by such proceedings. The allowance of such an attachment is forbidden by the principle of inter- State comity. Adoption of corporate seal. — Grossman v. Hilltown Turnpike Co., 1857, 3 Gr., 225. In an action of covenant against acorporatiou the seal upon the instrument on which suit is brought must be proved to be the seal of the corporation. A corporation may adopt the seal of another, or an ink im- pression, but such adoption must be proved. To this it is not necessary to show a resolution of the directors. Whether or not the seal is that of the de- fendant corporation is a question for the jury. Compensation of directors— Want of consideratiou.-^Loan Assn. r. Stonementz, 1857, 5 C, 534. A director of a corporation, elected to serve without compensation, cannot recover against the corporation for services rendered in the_ capacity of director or for such as were incidental to that office ; a resolution passed by the directors after such services were rendered, authorizing compensation therefor, is not valid as a contract, being without consideration, and void. See also Field v. Union Box Co.. 1876 C P 2 W N. C, 426. , , ., . III. Xlie UablliUes of Directors. i Directors or Fiduciaries. See also 2. Commutation of debt due corporation by director. — Baird v. Bank of Washington, 1824, 11 S. & E., 411. The fact that a director is responsible for a portion of a debt due the corporation does not invalidate a contract to commute it voted for by such director, except upon evidence of collusion with the other directors or fraud on the part of the defendant ; the latter's liabil- ity remains unaffected. Preference in insolvency over other creditors of corporation.— Hop- kins' Appeal, 1879, 9 Nor., 69. The officers and directors of. an insolvent Parti.} DIEECTOES. 133 corporation cannot gain a preference over other creditors of the corporation by executing notes of the corporation in their own favor, obtaining judg- ment by default and issuing execution on them. Such conduct of the ofd- cers is a constructive fraud ; and, moreover, under the Act of April 7, 1870 in such case distribution is to be made as in ease of insolvency. ' Making profit by sale of property to corporation.— Simons v. The Company, 1869, 11 Sm., 202. Agents or directors of a corporation cannot make a profit for themselves from the corporation by conveying to it at an advance property which they have purchased. That such purchase was made immediately before the formation of the company and without precedent authority, is immaterial if the purchase was on behalf of the company, and was subsequently ratified ; aflarming 6 Phila., 561, 25 L. Int., 156. See also Mcllhenny's Appeal, 1869, 11 Sm., 188 : reversing 6 Phila., 495: Densmore Oil Co. V. Densmore, 1870, 14 Sm., 43. See also III, 2. Purchase by directors at sale ordered by stockholders— Construct- ive fraud— Bona fides.— Watts' Appeal, 1875, 28 Sm., 370. Where di- rectors buy at sales ordered by the stockholders and openly conducted, at fair prices, the sales are valid. » Ashhurst's Appeal, 1869, 10 Sm., 290. A sale of the corporation's prop- erty by the directors to themselves as private individuals, when it is for a fair price and for the purpose of enabling the corporation to pay its debts, is not void as being a constructive fraud and imposes no trust upon the pur- chasers in favor of the stockholders. Directors' purchase of accommodation note.— Holmes v. Paul, i860, 3 Gr., 299, 5 Clark, 461. A member of the board of directors of a corpora- tion, one of its finance committe, may purchase a note given by an indiv- idual for the accommodation of the corporation, and recover against the maker, where he was not the agent of the company to sell the note. Stock purchaseforbenefitof company— Misappropriation of, — Kim- mell V. Geeting, 1853, 2 Gr., 125. It seems that after the directors of a corp- oration have passed a resolution directing one of their number to purchase stock of the corporation for the benefit of the company, they cannot treat the purchase as having been made for their own benefit, and divide the stock among themselves. A change in the time and place of the sale from that published when the resolution was passed, is not a revocation of the author- ity to purchase for the benefit of the stockholders. See also Kimmell v. Stoner, 1851, 6 H., 155, and III, 2, infra. Same — Stockholders' laches.— Kimmell v. Geeting, 1853, 2 Gr., 125. Where directors of a corporation have divided among themselves stock pur- chased by one of their number under a resolution of the board which con- templated that the purchase shotild be for the benefit of all the stockholders, a transfer of the stock on the books to the directors and the directors' voting such stock at the corporate elections constitute a sufficient means whereby the stockholders might discover the fraud. Therefore a stockholder who has neglected for a period of six years after such possibility of discovery to seek redress for such fraud is debarred from bringing an action on the case against the directors for conspiracy. See also III, 2. Same — Compensation for selling stock. — Freeman v. Stine, 1881, 15 Phila., 37, 38 L. Int., 268. Directors of a corporation occupy a fiduciary re- lation to it, and cannot vote an excessive compensation to themselves for their services in selling its stock. A commission of one share for every two sold is excessive, and those sharing in the voting of such a commission, and receiving a portion of the stock in pursuance thereof, are liable to the com- pany and its assignee for the benefit of creditors for the full value of all the stock issued under such a resolution less the amount actually paid for it. Stock cannot be sold to directors at one-third of its par value as fixed by the charter. Directors receiving it under a resolution of the board to that efifect, are liable for its par value. Fraud by co-directors. — Maisch v. Savings Fund, 1862, D. C, 3 Phila., 134 DIRECTORS. [Port J. 30, ]9 L. Int., 140. Directors who had no knowledge of the perpetration of frauds hy their co-directors, and who never entered upon their duties as di- rectors, are not liable for such frauds. Mistakes of judgment.— Spering's Appeal, 1872, 21 Sm., 11. Directors ia a stock corporation are not as to the stockholders technical trustees, but are mandatories and are bound to use only ordinary skill and diligence ; they are not liable for mistakes of judgment within the scope of their powers, though the mistakes be gross, especially if they have acted under the advice of counsel. See also Watts' Appeal, 1875, 28 Sm., 370. S. Suits aga/lnst Directors fISCO?(TIlVUAKCE. Pittsburgh Coal Railroad Co. v. Pittsburgh Southern R. Co., 1882, C. P., Allegheny, 30 Pitts. L. J., 216. Where a rule is taken by-.T stockholder to show cause why a discontinuance should not be stricken off in a suit by the coi-poration of which he is a member, the discontiniiance having been en- tered at the direction of a minority of the board of directors,' the court will not compel the production before a commissioner appointed to take testi- mony on the rule, a paper containing a statement of the differences between the plaintiff corporation and the defendant where there is no question raised as to the propriety and justice to the stockholders of the agreement by which the discontinuance was induced OISCOUNX, See Bills and Notes. Issue of bonds at, see Bonds. DISCOVERY. Bill of, against corporation; in aid of execution.— Large v. Transports ation Co., 1841, 2 Ash., 394. A plaintiff who had issued execution agai'nst a corporation was not obliged, upon the return of the execution in whole or m part unsatisfied, to proceed to sequestration. He could sue out successive executions until he was satisfied. And he might have a bill of discovery in aid of his execution. Part /.] DISCOVERY — DISFEANCHISEMKNT AND AMOTION. 139 Sevens v. The Turnpike Co., 1849, 10 B., 174. A bill to compel discovery of assets lies against a corporation under the Act of 1836, Sections 9 and 10. The required oath is to be elicited by joining the oificers. But such a bill will not lie at the instance of a judgment creditor against an insolvent eorp- poration ; the creditor must pursue the remedy of sequestration, and the bill must be filed by the sequestrator. Foreign corporatiou— Disclosure of stockholders' names.— North r. Weaver Electric Mail Box Manfg. Co., 1887, C. P., 3 C. C. R., 316. The courts of Pennsylvania have jurisdiction to compel a foreign corporation having its principal place of business in this State to disclose the names of its stockholders ai;id collect unpaid subscriptions to satisfy its creditors. DISCREXIOK. AJmseof, in exercising corporate franchises, see Cliarter, V, Quo Warranto., In location of corporate works, see Eminent Domain. Of directors, see Directors. Of election injectors in deciding qualification for voting, see Elections. When performance of corporate functions is not discretionary, see Liabilities and Duties of Corporations. ' DISCRIiaiKATIOX. In performance of corporate functions, see Liabilities and Duties of Corporations. DISFRA?(CMISEIIIE9IX ANTD AiaOXIOTX. I. THE POWER TO EXPEL : WHEN IT MAY BE EXERCISED : GROUNDS FOR EXPULSION. II. MODE OF EXERCISING THE POWER : TRIAL ETC. III. RESTORATION TO MEMBERSHIP: MANDAMUS TO COMPEL, ETC. IV. MISCELLANEOUS. I. Xlie Po-wer to Expel : "When it may toe Exercised: Grounds for Expulsion. The power is purely statutory except in two cases.— Evans v. The Philadelphia Club, 1865, 14 Wr., 107. The power of disfranchisement must be conferred by statute, and is never sustained as an incidental power, with- out statute grant, except in two cases — first, on conviction of the member in a court of justice, of an infamous offence, and second where he has com- mitted some act against the society which tends to its destruction or injury. See also Comm. v. St. Patrick Society, infra ; Leech v. Harris, C. P., 2 Brew- ster, 571, and cases infra generally. Injunction to restrain expulsion.— Leech v. Harris, C. P. ,2 Brewster, 571. A threatened expulsion for an offence which is neither an infamous crime nor against the society nor included among the offences specified in its by-laws as grounds for expulsion will be restrained by injunction. 140 DISFRANCHISEMENT AND AMOTION. [Fart I. Where corporate property is not represented by stock. — ^Evans v. Philadelphia Club, 1865, 14 Wr., 107. In any corporation owning property no power of expulsion can he sustained unless expressly conferred by the charter. It is not material that the property of the corporation is not rep- resented in the form of stock. Provisions of by-laws— Power of majority.— Evans v. Philadelphia Club, 1865, 14 Wr., 107. Though the power to make by-laws is incidental to a corporation, by-laws which vest in a majority the power of expulsion for minor offences are, so far, void, and expulsions under them will not be sus- tained. Same — ^When by-laws are binding. — Society for Visitation of the Sick &c. V. Comm., 1866, 2 Sm., 125. "Where a charter confers the power of ex- pulsion and requires a candidate for membership to sign the constitution and by-laws as a condition of membership, the provisions of the by-laws as to the causes for expulsion are binding upon such member and their fitness is not the subject of judicial inquiry. Delegation of power to expel. — Hassler v. Musical Association, 1880, C. P., 14 Phila., 233, 37 L. Int., 434. The power of expulsion belongs only to the corporation at large unless by the charter, or some by-law founded upon it, the power is delegated to a select number. Suspension.— Schaasberger v. Staeudel, 1880, C. P., 7 W. N. C, 379. A power to expel does not include a power to suspend. Amotion — ^Power of electing body. — Batterson v. Thompson, 1871, C. P., 8 Phila., 251, 28 L. Int., 172, 3 Leg. Gaz., 173. A power of amotion does not pass by a grant of power to elect, as incidental to the latter, but must be expressly reposed in the electing body by the charter. Improper charter provisions as to grounds for expulsion- Indefi- niteness etc. — Butchers' Beneficial Association, 1861, 2 Wr.. 298. A charter which contains an indefinite statement of the offences which shall consti- tute sufficient ground for expulsion, as that any member may be expelled who commits any misdemeanor or any other act " that may prove injurious to his character or standing as a member of the association," will not be ap- proved. Beneficial Association of Brotherly Unity, 1861, 2 Wr., 299. A charter which gives to a majority of the members of the corporation power to expel any member " guilty of any offense against the law " will not be approved. Butchers' Beneficial Association, 1860, 11 C, 151. An article in a charter giving power to the corporation to expel any member who shall be "guilty of actions which may injure the association" will not be approved; the power conferred is too indefinite. Sarsfield Beneficial Society, 1865, C. P., 6 Phila., 64, 22 L. Int., 357. A charter containing a provision for the expulsion of any member " who shall be guilty of any practice injurious to himself, his family or society" will not be approved. The provision is too indefinite and uncertain. Phila. Artizans' Assn., 1871, C. P., 8 Phila., 229, 28 L. Int., 13. A charter which leaves the causes and manner of effecting expulsion to be determ- ined by the by-laws will not be approved. Enlistment in army or navy.— Mulholland Benevolent Society, 1873, 10 Phila., 19, 30 L. Int., 85. A charter will not be approved which con- tains a provision that membership shall be forfeited upon enlistment in the army or navy. Offence against co-member.— Evans v. The Philadelphia Club, 1865, 14 Wr., 107. A personal offence of one member of a corporation against another, so long as it does not tend to the subversion of the government of the corporation, does not justify dis&anchisement on the ground that it is against the offending member's duty as a corporator. Vilifying co-member.— Comm. v. St. Patrick Society, 1810, 2 Binn., 440. Without an express power in the charter, a member of a corporation cannot Part Z] DISFEANCHISEMENT AND AMOTION. 141 be disfranchised unless he has been guilty of some oflfence which either af- fects the interest or good government of the corporation or is indictable by the law of the land ; a by-law imposing the penalty of expulsion for vilify- ing a co-member in a private quarrel without disturbing the decorum of the corporation, is not necessary for the good government of the corporation, and is void. Refusal to submit to arbitration.— Sweeny v. Beneficial Society, 1884, C. P., 14 W. N. C, 466, 486. A by-law compelling an aggrieved member to submit to arbitration within the society is invalid, and a violation of it by resort to the civil courts is not a valid ground for expulsion. Worrilow's Appeal, 1884, 2 Del. Co., 66. Where a society whose constitu- tion provides for the punishment of members who shall knowingly violate its rules passes a resolution that any member appealing to the civil courts on differences between himself and the society, before he has sought redress in the tribunals of the order, may be expelled, a member cannot be expelled under such resolution when at the time of his resort to the civil courts he believed he had exhausted all the remedies provided by the laws of the society. See also Green*. African M. E. Society, III, infra. Embezzlement. — Comm. v. Kensington Beneficial Association, 1884, C. P., 41 L. Int., 174. Where the constitution of a society provides that any member may be expelled for indecent and vicious practices injurious to civil society, a member who embezzles money belonging to the society comes within the rule. Alteration of physician's bill as basis of claim for relief —Comm. V. Philanthropic Society, 1813, 5 Binn., 486. Where the charter of a corpor- ation authorizes the expulsion of a member for being concerned in scandal- ous or improper proceedings which might injure the reputation of the so- ciety, altering a physician's bill from $4 to $40 and presenting it as the basis of a claim against the society, for relief, is a sufficient ground for expulsion ; it is not necessary that the minutes of the expulsion should state that the action did injure the reputation of the society. And see, as to beneficial societies generally, Part III. Feigning sickness. — Society for Visitation of The Sick &c. v. Comm., 1866, 2 Sm., 125. In a corporation one of whose objects is to provide assist- ance for sick members, to feign sickness and thereby draw relief after recov- ery is within the power of expulsion as "an act against the society, which tends to its destruction or injury," or as an offence against the guilty mem- ber's duty as a corporator. See, as to beneficial societies generally. Part III. Refusal to resign from social club. — Evajis v. Philadelphia Club, 1863, C. p., 3 Luz. Leg. Obs., 205. A member of a social club cannot be expelled because he refuses to resign at the request of the board of directors. II. mode of Exercising: the Po-wer : Trial etc. Charter must provide for trial. — Journalists' Fund, 1871, C. p., 8 Phila. 272 28 L. Int., 220. A charter will not be approved where there is no provision for trial before expulsion from membership. Expulsion upon reportof committee.— Comm. v. German Society, 1850, 3 H. 251. A member cannot be expelled vrithont an opportunity of being heard in his defence before the society at large ; it is irregular to expel him upon the report of a committee of investigation. Disfranchisement must be formally declared— Notice to accused member. — Comm. v. Penna, Beneficial Institution, 1815, 2 S. & E., 140. Where a charter provides that upon a certain default on the part of a mem- ber " he shall be expelled, ' ' such default is not ipso facto a forfeiture of mem- bership but there must be some act of the corporation declaring tl^e expul^ 142 DISFRANCHISEMENT AND AMOTION. iParl I. sion ; and this cannot be without a vote of expulsion, after notice to the member supposed to be in default, in order that such member may have an opportunity to disprove the detiault or present a defence. Dubree v. Reliance Engine Company, 1875, C. P., 1 W. N. C, 524. A corporator cannot be expelled without notice. Washington Beneficial Society i'. Bacher, 1853, 8 H., 425. Where the by- laws of a society provide that no member shall be expelled without a certain notice of the charges preferred against him, the feilure to give such notice renders an expulsion invalid. Harmstead v. Washington Fire Co., 1871, 8 PhUa., 331, 28 L. Int., 404. Forfeiture of membership in a corporation must be declared by the proper authority, and in the proper manner; otherwise it is without force or effect. Where forfeiture is not declared formally, the corporation cannot take ad- vantage of the existence of a cause of forfeiture to deprive a member of his rights in the distribution of the corporation's assets upon winding up thirty years afterward. Schweiger jj. Society, 1879, C. P., 13 PhUa., 113, 36 L. Int., 148. A corp- orator's offence against his duty as such must, to warrant disfranchisement, be stated as found after a formal investigation, and must not rest on infer- ence alone. By-law provision as to vote required for expulsion— AcquittaL— Comm. V. Guardians of The Poor, 1821, 6 S. & E., 468. Where a by-law provides that no member shall be expelled by a less number than two-thirds of those present nor vrithont notice and an opportunity to defend himself from the charges preferred, the failure of a motion of condemnation, after such hearing, to receive a two-thirds vote, is an acquittal, and a subsequent two-thirds vote of expulsion is invalid. Conclusiveness of sentence of expulsion— Collateral impeacluuent of,— Black & White Smiths Society v. Vandyke, 1836, 2 Whart., 390. The merits of an expulsion by the sentence of a corporation, acting in a judicial capacity and vnth undoubted jurisdiction of the subject matter, cannot be questioned collaterally where the proceedings are in accordance with the charter and have been assented to by express assent to the latter. See also Comm. V. Pike Beneficial Society, 1844, 8 W. & S., 247. Comm. t. Oliver, 1849, C. P., 2 Parsons, 420. The sentence of expulsion of a corporation acting in a judicial capacity and vrith undoubted jurisdic- tion of the subject matter is not to be questioned in a collateral proceeding while it remains unreversed by superior authority ; but such a sentence will be treated as void where the tribunal had no jurisdiction. Sperry's Appeal, 1887, 44 L. Int., 316. The merits of an expulsion will not be inquired into by the civil courts. They are confined to questions which involve some infi-action of the organic law of the society rendering the proceedings which resulted in the expulsion void for irregularity. Dodd V. Armstrong et al., 1886, C. P., 3 Lane. Law. Rev., 236, 43 L. Int., 270. The trial and expulsion of a member are conclusive on the merits of the case, including the sanity of the accused member. See also, as to impeachment of sentence in mandamus proceedings to re- store expelled member, IlL III. Restoration to Memberslilp : mandamus to Compel, etc. Petition— Previous demand for re-instatement.— Kennedy v. St. Ga- briel Society, 1877, C. P., Luzerne, 7 Luz. Leg. Reg., 24. It is not neces- sary that a petitioner for a writ of mandamus for restoration to his privileges as a corporator should show a previous demand for reinstatement, where cir- cumstances are shovni which clearly evince an intention not to do the act re- quired. Part J.] DISFRANCHISEMENT AND AMOTION. 143 Delay in applying for mandamus.— Comm. v. Southwark Engine Co., 1877, C. P., 12 Phila., 177, 34 L. Int., 58. An expelled corporator -will not be restored to membership by mandamus upon application twenty years after expulsion. After that lapse of time the corporation will be presumed to have complied with all the rules in his expulsion. What the return must set forth— " Sufficient evidence "of mem- ber's gllilt.— Society for Visitation of The Sick &c. v. Ctomm., 1866, 2 Sm., 125. In a proceeding by mandamus to compel restoration to membership in a corporation the return must set forth distinctly all the facts essential to the conviction both as to the cause of disfranchisement and the mode of proceeding. Where a by-law expressly declares that an expulsion must be founded on " sufficient evidence, ' ' the fact that the relator was found guilty on sufficient evidence must be set forth ; a statement that he was expelled " according to the terms of the constitution and by-laws'' is not sufficient. Same— Authority of "select number" to expel.— Green v. The Afri- can Methodist Episcopal Society, 1815, 1 S. &. E., 254. A return to a man- damus to compel the restoration to his standing' aS officer and member of one who had been expelled Irom a religious society, stating that such person had been tried and expelled "by a select number of the said society " etc., is de- fective in not showing the authority of the " select member " and the manner of their selection. Same — ^Religious corporation— Bringing law-suit against co-mem- ber — Sufficient cause. — Green v. The African Methodist Episcopal Society, 1815, 1 S. & R., 254. Where the discipline of a religious society rendered liable to expulsion any member who commenced an action at law against another member, "except the case be of such a nature as to require and justify a process at law," a return to a mandatnus to restore to his standing as trustee and member a member who has been expelled for such alleged cause, not averring that the case was of such a nature as to justify the act- ion, is defective. ' . .. • • Same— Fact of disftanchisement.— Comm. v. German Society, 1850, 3 H., 251. In mandamus proceedings to restore a disfranchised corporator the return must distinctly show the fact of disfranchisement, that the court may judge of the sufficiency of both the cause and the form of the proceed- ings. Evidence — ^Want of notice. — ^Washington Beneficial Society v. Bacher, 1853, 8 H.,. 425. Where the by-laws of a society provide that no member shall be expelled without a certain notice of the charges preferred against him, the failure to give such notice renders an expulsion invalid ; and in an issue in mandamus proceedings to restore the expelled member, neither the minutes of the void proceedings nor oral testimony of what the officer who served notice stated to the society at the meeting at which the expulsion was directed are evidence for the society. Inquiry by court into merits of expulsion and regularity of pro- ceedings. — Comm. V. Kensington Beneficial Association, 1884, C. P., 41 L. Int.. 174. A court cannot, for the purpose of re-instating in mandamus pro- ceedings an expelled corporator, inquire into the truth of the findings of fact made by the corporation in regular proceediiigs. It can entertain jurisdic- tion merely to determine the sufficiency of the cause of removal and to en- force regularity of the proceedings therein. Comm. J). German Society, 1850, 3 H., 251. In TWrtndamM* proceedings to restore a disfranchised corporator, although the court will not inquire into the merits of what the corporation has done while acting within the scope of the powers granted by its charter, it will inquire into the regularity of the proceedings. See also II, supra. Preventing restored member flrom resuming rights— Conspiracy.— McLafierty v. Sweeney, 1887, 19 W. N. C, 396. An expelled member who has been restored to membership by a decree of court cannot resume his 144 DISFKANCHISEMENT AND AMOTION.— DISSOLUTIOK. IPart I. rights without producing and serving upon the officers the decree ; his sim- ple declaration thereof is not sufficient. The officers' opposition under such circumstances to his resumption of his rights is not conspiracy. rv. iniscellaneous.' Amotion from boardof trustees— Acts in absence of removed mem- l,er.— St. Mary's Church, 1822, 7 S. & R., 516. A resolution in favor of an alteration of a charter, passed by a board of trustees in the absence of a member who has been unlawfully expelled from the board upon the ground of an implied resignation, is unlawful. DISSOLUTION. I. WHAT WORBK A DISSOLUTION. II. VOLUNTARY DISSOLUTION : WHEN DISSOLUTION WILL BE DECREED : JURISDICTION OF COURTS ETC. III. THE EFFECT OJP DISSOLUTION. rv. THE CONTROL AND DISPOSITION OF CORPORATE PROPERTY AFTER DISSOLUTION. I. 'Wbat 'Works a Dissolution. See, as to forfeiture of the Charter, Charter, V. Want of objects. — Comm. r. Reliance Fire Co., 1874, 31 L. Int., 46. The want of objects for the time being upon which the powers oi a corpora- tion may be exercised does not extinguish the corporate existence. E.g., the creation of the paid Fire Department of the City of Philadelphia did not operate as a dissolution of the existing fire companies. Loss of integral part. — Lehigh Bridge Co. v. Lehigh Coal & Nav. Co., 1833, 4 R., 8. The loss of an integral i>art of a corporation works an entire dissolution only where the consequence of such loss is a permanent incapac- ity to restore the deficient part. Where such loss can be supplied by officers de facto, the corporation's existence is sustained as to strangers. See also Rose V. The Turnpike Co., 1834, 3 Wts., 46 ; Comm. v. Cullen, 1 H., 132. Failure to elect officers on day appointed in charter.— Rose v. Turn- pike Co., 1834, 3 wts., 46. A corporation is not dissolved by a feilure to elect Ita officers on the day appointed for snch election by its charter where the election is entirely under the control of the stockholders and they may therefore hold such election on the next charter day without the presidence of officers or any act by the same in reference to the election. Insolvency. — Gormerly V. Building Association, 1876, C. P., 3 W. N. C, 11. The insolvency of a corx>oration does not dissolve it, and where its or- ganization is nominally maintained, equity will not interfere to appoint a receiver and enjoin the acting officers. See also Germantowu Rwy Co. v. Fitler, 1869, 10 Sm., 124, and Seitzinger v. Oil Co., II, infra Consolidation of corporations. — Baltimore & Snsqnehanna Railroad Co. V. Musselman, 1856, 2 Gr., 348. The consolidation of a defendant corpora- tion with other corporations under a law which provided for a continuance Part 7.] DISSOLUTION. 145 ot all its liabilities, is not sach a dissolntion of the corporation as will abate an action pending at the time of the dissolntion. It seems such would not be the effect of a mere voluntary consolidation of the corporations, without any such provision in the act providing therefor. Sheriff's sale of francMses under Act of April 7, 1870.— Beifler v. Honesdale & Delaware Plank Road Co., 1885, C. P., Wayne, 1 C. C. R., 64. The existence of a corporation is extingnished by a sale of its franchises un- der the Act of April 7, 1870, and no action can be maintained against it thereafter. Sheriff's sale upon mortgage of corporate property.— Shamokin Yal- ley & Pottaville Railroad Co. v. Malone, 1877, 4 Nor., 25. A sheriffs sale upon a mortgage of the property of a corporation extinguishes the corporate existence so as to bring a claim against the company within the provisions of the Act of April 25, 1850, Sec. 7 (P. L., 570), providing that the running of the statute of limitations shall be suspended in cases where a corporation defendant at the time of the accruing of the cause of action has "ceased from or suspended the ordinary business for which said corporation was created. n. Toluntary Dissolution : 'Wben Dissolution -will be Decreed : Jurisdiction of Courts etc. Assent of members to dissolution — Charter provisions— Consolida- tion — ^Myers v. Unity Beneficial Association, C. P., PhUa., July 6, 1848, Ms., Brightley's Dig., 404. The charter of a beneficial society provided that it should not be dissolved while fifteen members were unwilling. Held that an alteration of the charter providing that a majority should be suflcient to dissolve the association coidd not be made against the vrishes of sixteen members voting against the alteration. United Daughters of Cornish, 1860, 11 C, 80. A provision in a proposed charter that the corporation shall not be dissolved while nine members re- main is illegal. Grerman Beneficial Assn., 1858, 6 C, 155. A proposed charter the terms of which prevent a majority of the members fit>m dissolving the corporation will not be granted. Lauman v. Lebanon Valley B. Co., 1858, 6 C, 42. A single stockholder cannot object to the consolidation of the corporation to which he belongs with another, under the authority of an act of Assembly, nor to the transfer of the entire property of the former to the latter. But he cannot be com- pelled to accept stock of the company into whose corporate existence that of the dissolved corporation is merged, in payment for the shares held by him in the latter, and a court of equity will restrain the of&cers of the latter from executing an agreement to that effect. Winding up of insolvent corporation— Insolvency must be previously ascertained.— Seitzinger v. December Oil Co., 1873, C. P., Schuylkill, 1 Leg. Chron., 234. A corporation cannot be dissolved and placed in the hands of a receiver for the vrinding up of its affairs, under an act of As- sembly, without a previous legal ascertainment of its insolvency. The pro- cess of winding up cannot be commenced upon the mere filing of a bill in equity under the provisions of the act. Prejudice of rights etc. — Credit MobUier, in re Dissolution of, 1873, 10 Phila. 2 30 L. Int., 44. "The dissolution of a corimration will not be de- creed where it might prejudice the public welfare or the interests of the corp- orators. Eanity jurisdiction.— Kelly -v. Building Association, 1875, C. P., 1 W. N C 218 A court of equity has no jurisdiction to decree the dissolution of a corporation. See also Gormeriy ». Building Association, 1876, C. P.,3 W. N. C, 11. 10 — MUEPHY. 146 DissoLunoir. IPart I. Act of April 9, 185&— What corporatoins may be dissolved there- under— Jnnsdiction. — Credit Mobilier, in re Dissolution of, 1873, 10 Phila., 2, 30 L. Int., 44. The Act of April 9, 1856 (P. L., 293), relating to the dissolution of corporations, gives jurisdiction over such corporations as were incorporated by the Legidature as well as those incorporated by the courts of common pleas. Comm. V. Slifer, 1866, 3 Sm., 71. The power of the courts of common pleas to dissolve corporations, under the Act of April 9, 1856, was not re- stricted to corporations formed under the authority of the courts of common pleas. Those courts had power to dissolve a manufacturing corporation formed under the Act of July 18, 1863. The proper court for decreeing such dissolution was that of the county in which the corporation had its princi- pal place of business. Same — ^Requisite action for dissolution under, — Strict compliance. — Marietta Building Association, 1878, C. P., Lancaster, 10 Lane. B., 37. A corporation vrill not be dissolved under the Act of April 9, 1856 upon the petition of a minority of the corporators ; nor where the petition for dissolu- tion is not under the corporate seal ; nor where the notice of the call for the special meeting at which it was resolved to present the petition contained no statement that that was an object of the meeting ; a statement that the ob- ject of the meeting was " for. the purpose of devising measures for the relief of the members " is not sufficient. To warrant the granting of such a peti- tion it must also appear that it would be " without prejudice to the interests of the corporators." The Act must be strictly complied with. m. Efltec^ of Dissolution. See also IV. Liability after dissolution. — ^North Whitehall Tovraship v. South White- hall Township, 1817, 3 S. & E., 116. The dissolution of a corporation is also a virtual dissolution of all its responsibilities. North Lebanon v. Arnold, 1864, 11 Wr., 488. Corporators cannot, after the dissolution of the corporation, be held liable for its debts. Capacity to sue. — Building Association v. Long, 1875, C. P., 1 W. N. C, 391. No suit can be brought in the name of a corporation after it is dis- solved. See also Building Association v. Anderson, 1868, C. P., 7 Phila., 106, 25 L. Int., 237 ; Cooper v. Loan Assn., 1882, 4 Out., 402 ; Shamokin VaUey &c. E. Co. v. Malone, 1877, 4 Nor., 25. Same — Sci. fa. sur mortgage, — Cooper v. Oriental Savings & Loan As- sociation, 1882, 4 Out., 402. It seems that, generally, when the charter of a corporation has expired the corporation has no power to issue a scire facias aur mortgage. Capacity to be sued. — Eeifler ». Honesdale & Delaware Plank Eoad Co., 1885, C. P., Wayne, 1 C. C. E., 64. A corporation's existence is extin- guished by a shenfi's sale of its rights and franchises under the Act of April 7, 1870, and no action can be maintained against it thereafter. Whether, where a writ is served on the former treasurer of such an extinct corpora- tion, the proper form of procedure is for the party served to take a rule on the plaintiff to show cause why the writ should not be abated, dubitatmr. Shamokin Valley & PottsvUle Eailroad Co. v. Malone, 1877, 4 Nor., 25. An extinct corporation cannot be served with process ; nor can judgment be taken against it by default. Abatement of pending action. — Baltimore & Susquehanna Eailroad Co. V. Musselman, 1856, 2 Gr., 348. The consolidation of a defendant corp- oration with other corporations under a law which provided for a continu- ance of all its liabilities is not such a dissolution of the corporation as will abate an action pending at the time of the dissolution. It seems such would Part J.] DISSOLUTION. 147 not be the effect of a mere volnntary consolidation of the corporations, with- out any such provision in the act providing therefor. Pleading— Perth Amboy Steamboat Co. v. Parker, 1856, C. P., 2 Phila., 67. In an action against a corporation upon a judgment, a plea that no such corporation exists is bad, even if it be intended to show that the corporation was dissolved after a judgment was rendered. Such fact should have been stated in terms. Attachment. — Hintermeist«r v. Organ Co., 1885, C. P., Luzerne, 3 C. P. Repr.. 65, 74, 76, 1 0. C. R., 466. An attachment cannot be issued against a corporation or its receiver after dissolution. Frailey v. Ins. Co., 1874, 9 Phila., 219, 31 L. Int., 356. Where aa attach- ment is issued against a corporation and judgment obtained on it, but prior to such judgment the corporation has been dissolved and a receiver ap- pointed, the judgment and execution thereon will be set aside and the prop- erty given to the receiver. Pickersgill^. Lycoming Ins. Co., 1882, 39 L. Int., 312. The dissolution of a corporation and the appointment of a receiver for it does not dissolve an attachment previously s^ved upon it as garnishee. The suit may be prosecuted to judgment upon the substitution of the receiver as a party. Hays V. Lycoming Ins. Co., 1882, 3 Out., 621. Where judgment is ob- tained and an attachment thereon issued and served against an existing corp- oration, the action against the garnishee does not abate by the dissolution of the corporation. Farmers' & Mechanics' Bank v. Little, 1844, 8 W. & S., 207. In foreign attachment against a corporation as principal defendant the civil death of the latter by forfeiture of its charter before judgment against it dissolves the attachment, and in such case the action of an appellate court, upon an appeal which did not have a suspensive effect, reversing such decree of for- feiture because based upon erroneous grounds, but making a like decree in effect, does not, by relation, give the corporation an intermediate existence. Hintermeister v. Organ Co., 1885, C. P., Luzerne, 33 Pitts. L. J., 365, 3 C. P. Repr., 65, 74, 76, 1 C. C. R., 466. A foreign attachment against a corporation chartered, dissolved and placed in the hands of a receiver by another State cannot be maintained by one who was, at the time of such dissolution an appointment, not only a citizen of such other State, but a director of the company, and therefore bound by such proceedings. The allowance of such an attachment is forbidden by the principle of inter-State comity. Act done between expiration of charter and re-incorporation — Sloan V. The Real Estate Association, 1875, C. P., 1 W. N. C, 182. An act done by the former members of a corporation in the interim between the expira- tion of the original charter and re-incorporation is not valid where it is not done in accordance with the provisions of either the original charter or the new one. IV. Control and Disposition of Corporate Prop- erty after Dissolution. See also Insolvency. Preservation of creditors' rights.— Credit Mobilier, in re Dissolution of, 1873, 10 Phila., 2, 30 L. Int., 44. Although the dissolution of a corp- oration pending suit against it technically causes an abatement thereof, if seems that the assets of a defunct corporation still constitute a trust fund for its creditors and that a court of equity will lay hold of the fund and see that it be duly applied. But the rights of creditors, under the Act of April 9, 1856 (P. L., 293), to make claim upon the funds of the dissolved corporation in the hands of the trustees therein mentioned is not entirely free from doubt. 148 DISSOLUTION. [Part I- When creditors' rights are fixed. — Dean's Appeal, 1881, s Out., loi. The principle that the rights of the creditors of an insolvent become fixed at the time of the assignment applies to the case of an insolvent corporation which has been dissolved by a decree of court. See also German Ins. Co. u. Edinburgh Furniture Co., 1881, 39 L. Int., 81. Custodian of assets appointed by Legislature. — Erie & Northeast Eailroad Co. v. Casey, 1856, 2 C, 287. When a corporation is dissolved by a repeal of its charter, the Legislature may appoint a person to take charge of its assets for the use of the creditors and stockholders, and to take charge of such of its property as belonged to the public for the use of the public. Fraud in obtaining dissolution — Trust ezmaleflci. — ^Bailey's Appeal, 1880, 15 Nor., 253. Where certain parties fraudulently represent that the entire stock and assets of a corporation belong to them, and thereby procure a decree ol dissolution and acquire possession of the corporate property, they will be decreed trustees ex maleficio as respects bona fide stockholders. BUI by receiver against directors — Misappropriation. — McCarty's Appeal, 1885, 17 W. N. C, 182, 43 L. Int., 186, 33 Pitts. L. J., 454. The receiver of a dissolved corporation may maintain a bill in equity against its officers and directors to recover moneys of the corporation which they have wrongfully appropriated to themselves, notwithstanding an allegation in de- fence that the corporation owes no debts. The latter question is properly determined upon the distribution of the recovered fund. A decree may in such case be entered against the defendants jointly where the evidence shows that they acted jointly in the misappropriation. Distribution properly made to stockholders whose names appear on corporate books. — Bank of Commerce's Appeal, 1873, 23 Sm., 59. The officers of a corporation who upon its dissolution have distributed the as- sets among the stockholders appearing upon the books are not liable to the assignee of a stockholder who holds the latter's certificate but to whom the stock was never transferred upon the books of the company. As between corporation and corporator, the stock book is the evidence of their relation. The corporation need consult merely its own record. See also St. Nicholas Coal Co., 1880, C. P., 9 W. N. C, 403. Payment to assignee without certificate. — Bell v. Lafferty, 1881, 1 Penny., 454. The holder of certificates of stock in a corporation, which were delivered to him with powers of attorney, signed in blank by the owner, as collateral security, but which stock was not transferred upon the books of the company, cannot recover from a trustee of the company the amount of a dividend of its assets at its dissolution paid bona fide and with- out notice to, a third party who produced a later assignment of such divi- dend from the owner without the certificates. Bights of holders of assessed shares. — North American Mining Co. v. Clarke, 1861, 4Wr., 432. Where a corporation's articles of association pro- vide that certain shares shall be non-assessable and the others assessable, that the holders of the latter shall be reimbursed their assessments as soon as sufficient jpro/ite are made by the company, and that general dividends of profits shall be declared after such reimbursement, but make no provision for the distribution of the property upon winding up, the holders of assessed shares, upon the winding up of the company without the realization of any profits, are entitled to no preference in the distribution of the company's capital. Rights of illegally disfranchised member.— Harmstead v. Washington Fire Co., 1871, 8 Phila., 331, 28 L. Int., 404. Where forfeiture of member- ship has not been properly and formally declared, a corporation cannot take advantage of a cause of forfeitute to deprive a, member of his rights in the distribution of the corporation's assets upon winding up thirty years afterward. Contributing members.— Neptune Hose Co. 's Appeal, 1874, 6 Leg. Gaz., 79. The contributing members of a fire company held entitled to share in the distribution of its assets on dissolution. ■P"*^ -^-J DISTEIBUTION — DIVIDENDS. 149 DISXRIBVTIOI^ Of corporate assets : upon dissolution or insolvency, see Assignment, I, Dissolution, Insolvency; hy declaring illegal dividends, see Dividends. Of proceeds of execution, see Execution. Of new stock, whether or not a stock dividend, see Taxation. Of bequeathed stock, see Principal and Income. What is to be considered a dividend for purposes of taxation, and the taxation of dividends generaUy, see Taxation. Stock dividends, what dividends are to be considered income and what principal, for purposes of distribution among legatees, see Principal and Income. Dividends upon preferred or deferred stock, see Preferred Stock, Deferred Slock. Directors' discretion in declaring, — Ford v. The Coal Co., 1868, 25 L. Int., 268. The courts will not control the discretion of directors in declar- ing dividends. The directors of a coal company have power to create a sinking fund out of their annnal profits to secure the par value of the com- pany's stock. But they cannot create a trust for the purpose of preventing the reversal or modification of such a jwlicy by future boards of directors. Action by stockholder to recover dividends— Interest— Statute of limitations. — Jacobs v. Telford &c. Turnpike Co., 1886, C. P., Mont- gomery, 2 Montgom. Co., 101. The remedy for a refusal to permit or prop- erly note upon the books of a corporation a transfer of stock is a special action on the case. The refusal is a tort, which may be waived and upon which an action may be brought in assumpsit only where the circumstances raise an implied contract. But assumpsit may be brought for the recovery of such dividends as were due at the date of the institution of the suit. Interest is recoverable fi^om the date of the demand. West Chester & Phila. E. Co. v. Jackson, 1875, 27 Sm., 321. Assumpsit is the proper remedy for a corporation's breach of its contract vyith respect to the payment of dividends on preferred stock. See further Preferred Stock. Phila., WUm. & Bait. R. Co. v. Cowell, 1857, 4 C, 329. A corporation cannot set up the statute of limitations against a stockholder's claim for dividends until a demand and refusal or a notice to the holder that his right to the dividends is denied. Beflisal to permit subscription to additional stock— Recovery of dividends. — Bank of Montgomery v. Reese, 1856, 2 C, 143. A corpora- tion is liable in damages for refusing to permit a stockholder to subscribe for additional stock for which he is entitled to subscribe under resolutions of the directors. In such case, where the consideration has been paid, the measure of damages is the difierence between the highest market value be- tween the time of breach and the trial and the par value, together with the bonus and dividends which would have been received in the meantime See also Wilson v. The Bank, 5 C, 537. Fraudulent dividends— Impairment of capital.— Stang's Appeal, 1881 10 W. N. C, 409. Stockholders who diminish the capital of a corpor- ation by distribution among themselves, without first providing for the pay- ment of all the corporation's debts, receive it impressed with a trust in 150 DIVIDENDS — DUES. [fort /. fevor of the corporation's creditors, whicn trust is enforceable in equity. But a stockholder who has not shared in the distribution is not liable. Same— Loan by director for payment of fraudulent dividend- Stockholders' rights.- Kisterbock's Appeal, 1866, 1 Sm., 483. A director of a corporation long previously rendered insolvent by the acts of the direct- ors in fraudulently declaring dividends out of the capital is not entitled to receive from the assets of the corporation in the hands of its assignee for the benefit of creditors any part of a loan to the corporation made by him to en- able it to pay a dividend so fraudulently declared, until the stockholders (v^ho became such by making dei)Osits) are fully paid, irrespectively of the time of their deposits with relation to the fraudulent dividend for which the loan was made. Stock dividend— Holder's liability .—Aultman's Appeal, 1881, 2 Out., 505. Where by statute all the stockholders in a certain corporation are made personally liable to the extent of their subscription, for all stock " owned '' by them, their liability is not limited to the stock subscribed by them, but extends to stock distributed as a dividend. Application of dividends to pasnnent of note due corporation plaint- iff.— Klopp V. Lebanon Valley Bank, 1861, 3 Wr., 489. In an a. Lintsman, 1876, C. P., Westmoreland, 23 Pitts. L. J., 122. The provision for cumulative voting in Article XVI, Sec. 4, of the State Constitution, gives the stockholder the right to cast for one person as many votes for each share held by him as there are directors to be elected. Pierce v. Comm., 1883, 8 Out., 150. Article XVI, Section 4, of the State Constitution, providing for the right to vote cumulatively for directors of corporations, is not merely directory, and does not require legislation to give it effect. It is not necessary to the exercising of this right that notice should be given of the intention to do so. Hays V. Comm., 1876, 1 Nor., 518. The method of voting at corporate elections prescribed by the new Constitution cannot be imposed upon corp- orations created before the adoption of that Constitution and which have accepted no benefits under it. The right to vote for corporate ofBcers in a particular way, established by a charter, is a vested right: overruling Comm. V. Lintsman, 1876, C. P., Westmoreland, 23 Pitts. L. J., 123. Comm. V. Fitter, 1883, C. P., Mercer, 30 Pitts. L. J., 286. Cumulated votes must be counted at corporate elections whenever the voter writes or prints upon his ballots sufficient words and figures to impart to the election officers with certainty to a general intent his wishes as to the persons for whom they are cast and the number of votes he casts for each candidate. The ballots must be counted without reference to supposed facts which do not appear upon the ballots. Proxies.— Comm. v. Bringhurst, 1883, 7 Out., 134, 13 W. N. C, 483, 40 L. Int., 326. Members of a corporation have no right to vote by proxy at a Part T. ] ELECTIONS. 153 corporate election nnless such a right is expressly conferred by the charter or a valid by-law : affirming 12 W. N. C, 519. WUson V. Academy of Music, 1886, C. P., 43 L. Int., 86, 2 C. C. E., 280. Where a charter gives to stockholders the right of voting by proxy at the or- ganization of the corporation it ■will be presumed that the stockholders may so vote at all subsequent elections, notwithstanding that a subsequent clause of the charter, providing for the mode of holding and conducting the annual elections, is silent upon the subject of proxies. The power also will be im- plied to vote by proxy ' ' at all meetings when a stock vote has been ordered. ' ' Under authority to adopt such by-laws as may be deemed expedient for the well-being of the corporation, the directors may validly adopt by-laws to effectuate these implied powers. Comm. V. Coxe, 1873, C. P., Schuylkill, 1 Leg. Chron. E., 89. The right of voting by proxy cannot be abridged by a by-law passed by the board of directors without the knowledge or consent of the stockholders, imposing upon it conditions not required by the charter. Mandamus will lie to compel inspectors appointed to receive and count the votes at a corporate election, to receive and count votes by proxy which have been rejected for an insufficient reason. By-laws regulating mode of conducting,— Inspectors— Ballots.— CJomm. 1). Woelper, 1817, 3 S. & E. , 28. Where a charter gives the corpora- tion power to make rules, by-laws and ordinances and to do everything needful for the good government of the congregation, a by-law authorizing the president to appoint inspectors of election and another providing that, "if, beside the names, there are other things upon the tickets, or if two or more tickets are found together, such tickets shall not be counted," are legal ; the engraving of an eagle upon such tickets is a violation of the latter by-law. By-law providing when and how vote may be ordered. — Wilson r. Academy of Music, 1886, C. P., 43 L. Int., 86, 3 C. C. E., 280. Under au- thority to adopt such by-laws as may be deemed expedient for the well being of the corporation, a by-law may be passed providing that a stock vote may be ordered at any annual, adjourned or special meeting of the stockholders, when demanded over the signatures of ten stockholders, upon any question proposed in writing and duly seconded. ^oposed amendment of charter — ^Denial of assent thereto. — Mer- cantile Library Co., 1868, C. P., 2 Brewst., 447. Where it is denied that a proposed amendment to the charter of a corporation has been adopted by the stockholders, the court before approving it will order a stock vote to be taken. Failure to elect on day appointed in charter--Eose v. Turnpike Co.. 1834, 3 Wts. , 46. A corporation is not dissolved by a failure to elect its offic- ers on the day appointed for such election by its charter where the election is entirely under the control of the stockholders and they may therefore hold such election on the next charter day without the presidence of officers or any act by the same in reference to the election. Election at specially called meeting— Validity— Charter provisions —Presence of majority of stockholders. — Gowen's Appeal, 1881, 10 w. N. C. 85 38 L. Int., 215. Where a charter provides that upon a failure to elect corporate officers at any regular meeting, it shall be lawiul to hold a meeting for the election of such officers on any day thereafter, the president and secretary giving at least ten days' previous notice thereof, and another section of the charter provides that special meetings may be called by order of the president etc., of which meetings twenty days' notice must be given, specifying the object, and that at such meetings no business shall be transacted unless a majority of the stockholders are present in person or by proxy ; a meeting called by the managers, and by them termed "special," for the purpose of holding an election which by reason of an irregularity had not been held at the regular time, will be decreed to have been held under, and 154 BLKCnoNS. [Part I. by virtue of the first mentioned, and not by virtne of the latter section, and the officers elected at such a meeting will be held validly elected notwith- standing that a majority of the stockholders were not, in person or by proxy, present. Mandamus to compel election. — Comm. v. Eeim, 1881, C. P., 15 PhUa., 1, 38 L. Int., 32. Mandamus will issue against a private corporation to com- pel an election of officers and directors, which should have been held, but was not, at the annual meeting, where the charter provides in effect that in such case it shall be the duty of the directors to secure an election by special meeting as speedily as possible. Same— Failure to elect full number required. — Comm. v. Parrish, 1885, C. P., Luzerne, 2 Lane. Law Rev., 169, 14 Luz. Leg. Reg., 37, 3 Kulp, 231. Where the by-laws of a corporation provide for an election of a board of directors of seven upon a day certain, the failure to choose a full board be- cause of a tie vote as to certain of the candidates does not vitiate the election of those who received a clear plurality. In such a case the corporation may proceed to fill the vacancies caused by the tie votes at a special meeting of the stockholders held upon due notice. Affirmed: Wright v. Comm., 13 Out., 560. Number required to elect — Quorum— Majority. — Fisher v. Harrisburg Gas Co., 1857, C. P., Dauphin, 1 Pear., 118. Where a charter provides that the stockholders shall elect a president and five directors, no special provis- ion being made as to what number shall constitute a quorum, the common law rule will govern, and a quorum will be a majority. Where in such case the full number of directors is not elected, a majority of the number actually elected cannot constitute a quorum, but there must be a majority of the number for which the charter provides. Comm. v. Wickersham, 1870, 16 Sm., 134. For the purpose of determin- ing whether a corporation officer was elected by a majority of the directors present at the meeting, a director who is present but refuses to vote must be counted. Election by less than required vote. — ^Baird v. Washington Bank, 1824, 11 S. & R., 411. One who is elected to an office in a corporation by the body in which the power to elect is vested, but by a less number of that body than is prescribed by the charter, is an officer de facto, and his acts, at least as respects third persons, are binding on the corporation. The office of bank director is within this rule. Appointing place of corporate election— De facto directors.— Comm. V. Smith, 1863, 9 Wr., 59. Where neither the charter nor by-laws fix the place at which the regular corporate elections shall be held, it may be fixed by a board of managers de facto. II. Qualifications for Voting- Etc. By-laws imposing additional qualification.— Raynor v. Beattv, 1880, C. P., 9 W. N. C, 201, 14 Phila., 80, 37 L. Int., 298. By-laws imposing new or additional qualifications for voting at corporate elections, beyond those prescribed by the charter, are void. Inspectors' discretion in rejecting vote.— Weckeriey v. Geyer, 1824, 11 S. &. R., 34. In an action against the officers who conducted a church elec- tion for refusing to receive the plaintifi's vote, upon the ground that he was not qualified, it is error to instruct the jury that the election inspectors had no right to exercise a sound discretion in deciding whether the plaintiff had not by his voluntary acts dissolved his connection with the church. Duty of inspectors to investigate right to vote— Vote after assign- ment of stock — Quo warranto. — Comm. r. Woodward, 1860 C. P. 4 PhUa., 124, 17 L. Int., 141. .V writ of quo warranto will be issued to test the legality of the election of corporation officers upon an allegation that a stock' Part 7.] ELECTIONS. 155 holder who previously to the election had made an assignment of his shares, had voted them at such election, although he did so in the presence and with the assent of the assignee, and the stock had never heeu transferred upon the hooks of the company. The question of his right so to vote should have been investigated and decided by the judges conducting the election. Minors.— Patterson Memorial Caiurch, 1884, C. P., 41 L. Int., 253. A charter vrill not be approved if it confers membership and voting power upon minors. III. Proceedings to Xest Validity of Elections-Quo "Warranto. Mode of testing — Quo warranto. — United Fire Association V. Benseman, 1877, 4 W. N. C, 1,25 Pitts. L. J., 9. The proper mode of testing the legality of the election of a board of directors is by quo warranto and not mandamus. IrregnlArity in preceding election.— Comm v. Smith, 1863, 9 Wr., 59. The legality of acorporate election cannot be attacked for any vice or irreg- ularity in the preceding election when the quo warranto proceedings to test the title of those elected at such preceding election were not commenced during the defendants' term of office. Vote by disaualified person.— Comm. v. Woodward, 1860, C. P., 4 Phila., 124, 17 L. Int., 141. A writ of quo warranto will be issued to test the legality of the election of corporate officers upon an allegation that a stockholder who previously to the election had made an assignment of his shares had voted them at such election, although he did so in the presence and with the assent of the assignee and the stock had never been transferred upon the books of the company. The question of his right so to vote should have been investigated and decided by the judges conducting the election. Allegation in defence that corporation does not exist. — Comm. v. Woodward, 1860, C. P., 4 Phila., 124, 17 L. Int., 141. A writ of quo war- ranto to test the validity of an election of corporation officers will not be quashed upon the alleged ground that the corporation does not exist when the respondents themselves claim to have been elected directors and officers. Bigbt to inquire into validity — Concurrence etc — Miller v. McCutchen, 1851, C. P., 2Parsons, 205, A corporator who does not know, and hasno means ■ of knowing at the time when a corporate election takes place, that one who is elected is incompetent to exercise the office under the charter, will not be deemed to have concurred in it so as to preclude him from being a relator in a quo warronto information. A party becoming a corporator subsequently to an election is not disqualified from inquiring into the right by which offic- ers, illegally chosen at such election, hold their office. Evidence on trial— Conversations.— Comm. v. Woelper, 1817, 3 S. & E. 28. On the trial of a quo warranto which puts in issue the legality of an election conversations and confederacies between the members previous to the election are admissible in evidence when connected with the election. Same — Proof of presence of quorum. — Comm. v. Eead, 1839, 2 Ash., 261. Where at a corporate election some of the electors have refused to vote at all, the fact that a number of electors equal to a quorum actually voted is not the only admissible evidence, in a proceeding to test the validity of the election, to prove that a quorum were present at the meeting. Although the number of votes cast was less than a quorum, the fact that a quorum were present may be proved by the usual modes of evidence. Foreign corporation. — Comm. i: Leisenring, 1881, 15 Phila., 215, 39 L. Int. 402. A quo warranto will not be issued for the purpose of inquiring into' the regularity of an election of officers of a corporation chartered by an- 156 ELECTIONS. l^'art I- other State, notwithstanding that the charter provides that a branch office shall be kept within the jurisdiction of the court from which the writ is sought, and most of the directors reside within that jurisdiction. IV. miscellaneous. Adoption of cumulative method not an acceptance of provisions of new Constitution. — Hnnsicker V. Perkiomen &c. Turnpike Co., 1884, C. P., Montgomery, 1 Montgom. Co., 41. Although a corporation may bring itself within the operation of the new State Constitution by other action than the formal acceptance prescribed by the Act of April 29, 1874, *yeta mere departure from the accustomed mode of voting prescribed by the original charter to that prescribed by a statute passed subsequently to the adoption of the new Constitution does not of itself bring the corporation tmder the operation of the latter. Election in pursuance of amendment not an acceptance. — Comm. o. Culleu, 1850, 1 H., 132. Where the directors of a corporation have assumed to adopt an amendment to the charter without submitting it formally to the consideration of the corporators, the mere non-action of the latter for a period of two months after the official notification of such amendment and a failure to elect trustees under the provisions of the charter as unmodified by the amendment, do not constitute an implied acceptance, nor does the election of corporatie officers in pursuance of the amendment where there is a remonstrance by members s^ainst such election on the ground of non-ac- ceptance. Threatened contest as ground for injunction against corporation.— Paynter v. Clegg, 1873, 9 Phila., 480, 30 L. Int., 432, 2 Leg. Chron. E., 4. An injunction will not be continued against a corporation merely because of a threatened contest of an election for directors whose terms have not yet commenced. Usurpation of office — Injunction — Account. — Fletcher v. Gas & Water Co., 1871, 8 Phila., 559, 28 L. Int., 253. Persons who have by collusive and illegal means caused themselves to be elected directors of a corporation whose charter was granted to others, and have, in continuation of their usurped authority, been guilty of unlawful acts in the management of the corporate affairs, will be enjoined and decreed to account. Eligibility of inspector.— Comm. ». Woelper, 1817, 3 S. & E., 28. An inspector of a corporate election is himself eligible for election. Power of electing body. — Batterson v. Thompson, 1871, C. P., 8 PhDa., 251, 28 L. Int., 172, 3 Leg. Gaz., 173. A power of amotion does not pass by a grant of power to elect, as incidental to the latter, but must be expressly reposed in the electing body by the charter. Action by inspector upon indemnity for refusing to receive vote.— Weckerly v. Lutheran Congregation, 1831, 3 E., 172. The judge of a corp- oration election cannot maintain an action against the corporation to re- cover, upon an alleged indemnity, the amount of damages and costs pre- viously recovered against him by a corporator for having fraudulently and maliciously refused to receive his vote ; such a recovery is impossible whether the alleged promise of indemnity was made before or after the elect- ion or whether against recovery for fraudulent or honest rejection of votes. The record of a suit brought against the plaintiff by such corporator is conclusive evidence as to the fraudulent and malicious rejection. Election not necessary to perfect corporate existence. — Grubb. v. Mahoning Navigation Co., 1850, 2 H., 302. A corporation comes into being at the moment when the letters patent, are issued ; the subsequent formal organization by the election of officers is not necessary to perfect the corpor- ate existence. See Creation of Corporations. * But see Baker's Appeal, 1885, 13 Outer. , 461 , supra, Acceptance and Assent. Part J.] ELECTIONS — EMBEZZLEMENT. 157 Promise to pay debts if elected— Statute of Frauds.— Maule v. Buck- nell, 1865, 14 Wr. , 39. A promise by certain members of a corporation that if they are elected directors, they will pay certain of the corporation's debts is within the Statute of Frauds. EIHBEZZI.BIHIENT. Comm. V. Koons, 1880, Q. S., Luzerne, 1 Kulp, 134, 9 Lnz. Leg. Reg., 173. Qiisere, whether an Odd Fellows' association is such a "body corpor- ate " as is contemplated by the Act of March 31, 1860, relating to embezzle- ment. Hassinger's Case, 1840, 2 Ash., 287. The stockholders of. a corporation cannot oppose the discharge in bankruptcy of a petitioner who has embez- zled the corporation's property ; by becoming stockholders they have sur- rendered the control of the property represented by the stock to the presid- ent and managers, who alone could oppose the petitioners for that cause. The holders of unauthorized stock cannot oppose such discharge, since such stock is binding on the company and the owners come within the above principle. Nor can the holders of unauthorized certificates of loan oppose the discharge ; for whether they are prejudiced or not depends on the sol- vency of the corporation, which cannot be inquired into in such a proceed- ing ; its solvency is therefore presumed. Comm. V. Kensington Beneficial Association, 1884, C. P., 41 L. Int., 174. Where the constitution of a society provides that any member may be ex- pelled for indecent and vicious practices injurious to civil society, amember who embezzles money belonging to the society comes within the rule. 158 EMINENT DOMAIN. [P«rt I. EMINENT DOMAIN. * I. IN GENERAL : HOW AND BY WHOM THE POWER MAY BE EX- ERCISED. II. WHAT MAY BE TAKEN. III. LOCATION OP CORPORATE WORKS. IV. COMPENSATION FOR PROPERTY TAKEN. 1. Who are Entitled to Recover Damages. 2. Against Whom Damages may be Recovebed : As- of What Time they ake to be Assessed Eto. 3. Consequential Damages. 4. The Measueb of Damages : Foe What Damages may be Re- covebed Etc. a. In General. b. Evidence of Values. c. Interest on the Award. A. Costs. V. PROCEEDINGS AND PRACTICE IN THE RECOVERY OF DAM- AGES. 1. Statutory Remedies and the Remedy by Action. 2. The Bond fob Damages. 3. The Petition ■ Form and Requisites : Issue Etc. 4. Notice. 5. Report and Award : Form and Requisites. 6. Review of Proceedings : Setting Report Aside : Appeal Etc. 7. Miscellaneous. VI. THE TITLE ACQUIRED. Duties of corporations growing out of the exerciee of the power of eminent do- main, e. g, tlie construction, re-construction and repairs of roads, bridges etc., see Liabilities and Duties of Corporations, Boads and Highways. I. In General : Ho-w and by ITITtaom the Poorer may be Exercised. The exercise of the power by a corporation's lessee.— Hespenheide's Appeal, 1884, 4 Penny., 71. A corporation possessing the power of eminent domain may exercise it in altering or enlarging the works of another corpor- ation whose works it has leased. Lewis V. German town, Norristown & Phoenixville R. Co., 1881, C. P., Montgomery, 16 Phila., 608, 39 L. Int., 13. The lessees of the rights and property of a corporation cannot of their own motion exercise the right of eminent domain of the lessor corporation vested in the latter hut nnexer- * It should be especially borne in mlncl in consulting this head that, in eeneral' decisions peculiar to special classes of corporations, e. g. railroad, canal or turnpike companies, are to be sought under the several heads in Part in See Preface Part X] EMIXEXT DOMAIN. 159 cised by it at the time of the demise ; nor can receivers of the lessee corpor- ation. When a statute prescribes what powers shall pass by such a lease, no others can be otherwise conferred. Assignment of duties incident to exercise of the power.— Snow «. Deerfield, 1875, 28 Sm., 181. A corporation to wTiich has been granted a portion of the State's right of eminent domain cannot assign by contract the performance of any of the duties made incident to its exercise. Injunction to restrain entry on ground of forfeiture of franchises.— Hoffman's Appeal, 1881, 10 W. N. C, 401. Where there is no allegation of irreparable injury an injunction to restrain a corporation from entering for the construction of its works upon the complainant's land, under the right of eminent domain, will not be granted upon the alleged ground that the franchises of the defendant have been forfeited for misuser or non-user under the Act of March 22, 1871. Injunction to restrain construction of works except in manner spec- ified in license. — Unangst's Appeal, 1867, 5 Sm., 128. AraUroad company which enters upon land under a license and upon condition of refraining from constructing its road in a particular maimer, will be restrained by in- junction from constructing its road in a manner which violates the condi- tion. Landowner's refusal to suhmit to assessment.— Erie & Waterford Turnpike v. Cochran, 1807, C. P., Erie, 2 Hall's L. J., 88. A corporation may maintain an action of trespass against a landowner who refuses to submit to the statutory mode of assessing damages and obstructs the right of way across his land. II. 'Wbat may be Taken. Corporate franchises.— Towanda Bridge Qo., 1879, 10 Nor., 216. Corp- orate franchises may be taken under the right of eminent domain. Citizens' Passenger Railway Co., 1859, Q. S., Allegheny, 2 Crum., 10, 7 Pitts. L. J., 10. A corporate franchise is as much the subject of eminent domain as any other species of property. Philadelphia, Germantovm &c. R. Co. v. Schuylkill Valley R. Co., 1883, C. P., Montgomery, 40 L. Int., 287, 16 Phila., 636. There is no implied contract on the part of the State in granting a charter to a quasi-public corp- oration that the property or franchises of thfe latter shall be exempt from the common liability of the property of individuals to be taken for public use. Such property or franchises may be demanded for the public use, like any other property, upon the making of compensation. Twenty-second Street, 1883, 6 Out., 108. A corporate franchise, like any other species of property, may be taken by the State by the right of em- inent domain, and such taking is not an impairment of the charter contract within the meaning of the constitutional provision. See also Phila. & Gray's Ferry Passenger Railway Co.'s Appeal, 1883, 6 Out., 123. Public franchise— Use of street.— Pennsylvania Railroad Company's Appeal 1880, 12 Nor., 150. Although a franchise, like other property, may be taken by a corporation under the right of eminent domain, there can be no implication of such a right unless it arises from a necessity so absolute that without it the grant would be defeated. But the use of a street is a public franchise, and cannot be violated or partially appropriated except by direct legislative grant. Property of other corporations.— Cleveland v. Pittsburgh R. Co., 1862, C P .Allegheny, 2 Pitts., 348, 10 Pitts., L. J., 74. The Legislature has no power to authorize a corporation to appropriate under the power of eminent domain property of another corporation which is necessary to the conduct of the latter's business ; otherwise as to property not so necessary. See also Pittsburgh Junction R. Co.'s Appeal, 1886, 43 L. Int., 446. 160 EMINENT DOMAIN. [Part I. Lewis V. Germantowu, Norristown & Phoenixville E. Co., 1881, C. P., Montgomery, 40 L. Int. , 23. A corporation cannot, except by virtue of an express grant or one necessarily implied from the physical necessities of the case, appropriate nnder the right of eminent domain property or franchises previously granted to another company. This is true though the property or easement in question is not in actual use or necessary for the present pur- poses of the corporation owning it, and although the public has acquired subsequently to the grant to the latter an easement in the same subject mat- ter entirely compatible with that of the corporation. Such a grant is not implied in a franchise to construct a corporate work merely between specified termini, by reason of the fact that the property in question lies on one of an indefinite number of possible routes between the latter. The tender of compensation in such a case is immaterial. Land abandoned by another corporation. — Schuylkill Navigation Co. !>. Pottsville & Mahanoy R. Co., 1884, C. P., Schuylkill, 41 L. Int., 264. Land of a corporation which it has abandoned for its corporate purposes may be appropriated nnder the right of eminent domain by another corporation for the corporate purposes of tiie latter. Lands held in public charitable trust. — Southwest Penna. Pipe Lines V. Directors of The Poor, 1886, C. P., "Washington, 1 C. C. R., 460. A corp- oration having the power of eminent domain may enter upon lands held in trust for the employment and maintenance of the poor. Amount of land — Future corporate necessities etc .^Lodge v. Phila., Wilmington & Baltimore R. Co., 1871, 8 Phila., 345, 28 Leg. Int., 100. A company is not confined in taking possession of land to its present needs, but may in good faith provide for the future requirements of a more extended traffic. The quantity so needed is within the discretion of the company. Ground may be taken for the dei>osit of waste earth. III. Lrocation of Corporate "Works. Abandonment of location, see Abandonment. Discretion in choosing location.— Stmthers v. Dunkirk &c. R. Co., 1878, 6 Nor., 283. The discretion of a corporation in locating its works, within the authorized limits, cannot be controlled by the courts. Anspach v. Mahanoy & Broad Mountain E. Co., 1864, 5 Phila., 491, 21 L. Int., 212. The directors of a corporation will not be restrained in equity as to the location of the corporate works unless it be shown that they capric- iously and wantonly disregard the rights of the landowners. Change of location. — Roberts v. Philadelphia, G«rmantown & Norris- town Railroad Co., 1851, 5 Clark, 124, 1 Phila., 262, 8 L. Int., 230. A loca- tion once made may be altered even after an award of damages to the owner of the first tract. Ligat V. Comm., 1852, 7 H., 456. An error in selecting an undesirable location for a lockhouse is not conclusive. The power is not exhausted by the first appropriation. Mine Hill & Schuylkill Haven R. Co. v. Lippincott, 1878, 5 Nor., 468. Where a corporation having a right of way over mining lands covenants with the owners to change its location, upon notice, or permit the coal underneath its way to be mined, the removal of the way to another location on the same land is merely contractual and involves no exercise of the -power of eminent domain. It is therefore not within the decisions holding that the power of location when once exercised is exhausted. Beale v. Penna. R. Co., 1878, 5 Nor., 5Q9. The location is an appropria- tion of the land, and vests in the owners a right to the damages assessed which cannot be divested by the company's subsequent adoption of a new location. ■Port /.] EMINENT DOMAIN. 181 NeaJl V. Pittsbnrgli & Connellsville Railroad Co., 1854, 7 C, 19. When the works have been located' upon a tract of land, the assessment of damages and confirmation of the assessment constitute a judgment in favor of the owner for the amount awarded, upon which he is entitled to execu- tion although the company does not take possession and desires to change the route. How act of appropriation should be evidenced.— Heise v. Pennsyl- vania R. Co., 1869, 12 Sm., 67. A railroad company's specific act of appro- priating a piece of land for its roadway should he evidenced by some instru- ment filed of record, in order that the subject of appropriation may be specifically defined for the viewers. rv. Compensation for Property Xaken. 1. Who ave Entitledi Vo Recover Damages. \ Tenants.— Penn^lvania R.Co. v. Eby, 1884, 11 Out., 166. A tenant is "an owner or paity interested," entitled to security before entry can be made on the property without his consent. He may recover in trespass for injury done by an tinlawful entry. See also Brown v. Powell, 1855, 1 C, 229; N. Penn. R. Co. v. Davis, 1856, 2 C, 238; Allegheny & Perrysville Turnpike Co. v. Brosi, 1853, 10 H., 29; Phila. & Beading B. Co. v. Getz, 1884, 9 Out., 547. Philadelphia & Reading Railroad Co. v. Boyer, 1850, 1 H., 496. A life tenant is entitled to maintain proceedings for an assessment of damages to the life estate alone by the construction of the corporate works. Brown v. Powell, 1855, 1 C, 229. If a corporation, under a license from the owner- of the fee, enter uiwn land occupied by a tenant for years, with- out any assessment or payment of damages, the tenant may maintain an action of trespass against it, or against it agents or servants. Philadelphia & Beading R. Co. v. Lawrence, 1873, C. P., Schuylkill, 1 Leg. Chron. R., 401. Only such lessees as have a lease at the time when the right of way vests in the company are entitled to compensation. Parties leasing the property after the company's entry but before legal or volun- tary ascertainment of the damages are not so entitled. Pittsburgh Junction E. Co. v. McCutcheon, 1886, 18 W. N. C, 527. A tenant with whom the landlord has verbally contracted for a renewal of the lease, before the location of the works, is entitled to damages for the injury to his new term as well as for that done his unexpired term, although the renewed lease was not made until after the location. North Pennsylvania Railroad Co. v. Davis, 1856, 2 C, 238. The interest which a tenant for years holds under a covenant for the renewal of a lease is a proper subject of compensation. The fact that the viewers in their report designate such compensation as "damages for the non-renewal of the lease'' does not vitiate the award. Getzi). Phila. & Beading B. Co., 1884, 9 Out., 547. An owner and his tenant may unite in a proceeding for damages, notwithstanding that the ten- ancy is only from year to year and without a written lease. Passmore v. Philadelphia, Wilmington & Baltimore B. Co., 1872. C. P., 9 Phila., 579, 4 Leg. Gaz., 337. Damages to a tenancy for life may be awarded directly to the tenant without the intervention of a trustee for the remain- derman. Pittsburgh, Virginia & Charleston B. Co. v. Bentley, 1878, 7 Nor., 178. It is proper for the court, to lay dovra a rule as to the valuation of a life estate as an independent interest entitled to damages. The measure of damagesis the difference in the value of the life estate before and after the construction of the works. 11 — MUBPHY. lea EMINENT DOMAIN. \^Pari 1. Same — ^Breach of covenant to change location — Mines. — Mine Hill & Schuylkill Haven E. Co. v. Lippincott, 1878, 5 Nor., 468. Where a corp- oration has a right of way over mining lands, and covenants with the owner thereof that upon notice it will change its location, or permit the coal under- neath the way to be mined, a tenant of such owner, the terms of whose lease give him the right to mine all the coal in the land demised, may sue in the name of the landlord for the breach of such covenant : affirming 3 Leg. Chron. 337. Lessor— Construction upon ground leased to the corporation.— Heise V. Pennsylvania E. Co., 1869, 12 Sm., 67. A corporation may construct its works upon the property which it holds under a lease, and the lessors can recover no damages for such a use of the property during the term. If the company occupies with its tracks other ground also of the lessor, adjoining the leased portion, the lessor's right to damages for the taking of the addi- tional ground gives him no right to recover as for the taking of the entire amount of land so occupied. Owner of right of way. — EaUroad Co. v. WUliams, 1867, L. Int., Oct. 4, 1867, p. 316. The ovmer of a right of way is such an "owner of land " as is entitled to a jury to assess damages. Devisees of deceased owner— ^Administrator— Appeal. — ^McCay v. Baltimore & Philadelphia E. Co., 1885, C. P., Delaware, 2 Chest. Co., 558, 2 Del. Co., 419. The devisees or distributees of the estate of a deceased owner are entitled to appeal from the award. Such an appeal will be sus- tained although not made in the name of the administrator, but the court will direct an issue to be framed between the latter and the company ; and will also order the appellants to give their bond to the administrator to secure the estate from the costs of the appeal. Mortgagee.— Keller v. Pittsburgh & Lake Erie E. Co., 1881, 29 Pitts. L. J., 316. Where a mortgagee intervenes before the return of an award the damages will be awarded to the owner for the use primarily of the mort- gagee. Owner of ground rent— Bill for apportionment.— Voegtly v. Pitts- burgh & Port Wayne E. Co., 1859, 2 Gr., 243. The owner of a ground rent cannot maintain against a corporation, which has appropriated a part of the land out of which the rent issues, a bill to compel an apportionment of the rent and an extinguishment by the company of so much of the rent as is chargeable to the part appropriated. Such an owner retains nnimpaired his remedy against the ground, and must exhaust that remedy in the first in- stance. must be estimated as of the time when done, and a subsequent purchaser of the land cannot maintain an action to recover such damages Arthur v. Pennsylvania E. Co., 1870, C. P., Montgomery,' 27 L. Int 237 One who becomes the owner of the land by purchase after the location of the works but prior to its construction has no standing as a petitioner for dam- ages. TJey can be claimed only by the party who was the owner at the time ot the location or by his legal representatives Davis u Titusville & OU City B. Co., 1886, 44 L. Int., 93. The location of the road is an appropriation of the land, and the owner's right to damr-^es IS thereupon complete. Where the construction of the road is thereafter suspended, and before it is commenced a title t» or interest in the land is claimed to have been conveyed by the former owner to another.the latter has no standing to claim damages, where a proceeding is pending for assess- ment ot damages to the original owner. The appropriation is not fixed as of the date of the filing of a bond for damages where the location and original entry was without objection on the part 01 the ovimer. Part 7.] EMINENT DOMAIN. 163 Inquiry into petitioner's title. — Connecting Railroad, 1869, C. P., 2 Leg. Gaz., 3. A railroad company will not be permitted to file nunc pro tunc, after the jury has made its report, an answer denying the title of the petitioner to the land in question. Directors of the Poor v. Railroad Co., 1844, 7 W. & S. 236. In proceed- ings by inquest to recover damages to land for an injury done by the location and construction of a railroad through it, the plaintiff's title is a subject of inquiry before the jury : and upon exceptions to the inquisition it will be presumed, in the absence of proof to the contrary, that the title claimed was satisfactorily proven. Winebiddle v. Penna. E. Co., 1852, 2 6r., 32. The Supreme Court will not review the action of viewers in deciding that one claiming damages as owner of the appropriated land under the statute of limitations had. not been in possession for twenty-one years. The viewers maj pass upon questions of title so far as to determine who are entitled to damages. Church V. Northern Central Railway Co., 1863, 9 Wr., 339. An objection as to th&quajUum of title in the petitioner must be made at the time of the application for viewers or on aj^eal from their report. The question cannot be examined on certiorari. See also Turner's Petition, 1870, 2 Leg. Gaz., 148. Where petitioner has executed release of damages. — Herner v. Penna. Schuylkill Valley R. Co., 1884, C. P., Chester, 1 C. C. R., 43. View- ers will be appointed although the petitioner has executed a release of dam- ages where there is a dispute as to whether the release covered the damages in question. The effect of the agreement is for the viewers, subject to ap- peal. See also Fulmer v. Bangor & Portland R. Co., 1882, C. P., Northampton, 1 C. C. R., 46, 2 Del. Co., 427; Updegrove v. Schuylkill Valley R. Co., 1887, C. P., Chester, 3 C. C. R., 74. Plaintiff in execution against the land— Precedence of easement over lien of judgment. — Dean v. Kulp, 1870, 7 Phila., 650, 27 Leg. Int., 61 . The plaintiff in an execution against land a right of way over which the owner released to a railroad company under the Act of 1849 upon payment of compensation, takes the land subject to the company's easement notwith- standing that the judgment upon which execution issued was a lien upon the land before such release. 3. Against Whom Vatnages may be Recovered : As of What Time They are to be Assessed, Etc, See also 4, a. Judicial sale of property and franchises of appropriating company —Recovery from purchaser.— Lycoming Gas & Water Co. V. Moyer, 1882, 3 Out., 615. A sheriff's vendee of the franchises and property of a corpora- tion is' liable for consequential damages from the corporation's exercise of its franchises accruing before the sale. Martin v. Pittsburgh Southern Railroad Co., 1880, C. P., Allegheny, 28 Pitts. L. J., 156. A judicial sale under a mortgage of the property and fran- chises of a corporation does not discharge a landowner's unpaid claim for damages for land taken under the right of eminent domain ; such a claim may be enforced againstthe purchaser. And it cannot be defeated as against such purchaser by the fact that it was presented, reduced to judgment, to the auditor appointed to distribute the proceeds of the sale. 164 EMINENT DOMAIN. IPart T. Western Pennsylvania R. Co. r. Johnston, 1868, 9 Sm., 290. The sale of a railroad nnder a mortgage, before the damages of an owner of land taken for its roadbed are paid or secured, does not divest the owner of his right to recover such damages ; they may be recovered from the purchaser at the fore- closure sale ; and they may be recovered in a scire facias on the original judgment for damages, bringing in the purchaser. See also Wheeling, Pittsburgh & Baltimore E. Co.'s Appeal, 1881, 1 Penny., 360. BufMo, New York & Phila. E. Co. v. Harvey, 1884, 11 Out., 319. The judicial sale of the property and franchises of a corporation, under a first mortgage, does not divest an owner's interest in land appropriated by the company subsequently to the execution of the mortgage, for which it neither paid nor tendered security. Such an owner may in a scire facias upon the judgment obtained by him i^ainst the company for damages, with notice to the party claiming under the judicial sale, recover the amount fi^m the latter. Aliter, had the company duly given bond for the damages as in Fries v. South Penn. E. Co., 4 Nor., 73. Same — ^Vendee of owner who has released damages to State— Pub- lic Works.— Stout V. North Branch Canal Co., 1860, C. P., Luzerne, 1 Luz. lieg. Obs., 21. Where a landowner has released to the State his right to damages, his vendee cannot claim damages from a company succeeding by purchase to the rights and liabilities of the State, although the work is not constructed imtil thirty years after the release. Abandonment of land— By successor company— Affidavit of de- fence.— Potter V. Pittsburgh Southern Eailroad Co., 1886, 17 W. N. C, 40. In a scire facias upon a judgment against a corporation for land damages, an afiidavit of defence by the successor of the original defendant in the latter's rights, franchises and liabilities, to the effect that the original defendant complied with the law by giving a proper bond which was accepted by the plaintiff as adequate security, that the successor corporation, the other de- fendant, never entered upon the land, but abandoned and surrendered it, and that the judgment, obtained after its acquisition of the franchises of the original defendant was vrithout notice to it, is sufficient. Same — ^Liability of subsequently appropriating company. — Clay & HinkletowB Turnpike Co., 1884, Q. S., Lancaster, 1 Lane. Law Rev., 361. Where property has been so abandoned and is afterward appropriated by a second company under the right of eminent domain, the second company is not under any of the obligaltions, with respect to such property, imposed upon the first by its charter. Such an obligation could be enforced only against the original company or a party succeeding to its corporate rights and liabilities by a sale or lease of its works. As to abandonment in general, see Abandonment. Damages to be assessed as of date of appropriation. — Davis v. Titus- ville & Oil City E. Co., 1887, 44 L. Int., 93. Damages are to be assessed .as of the date of the appropriation and not as of the date of the actual con- struction. See also Arthur v. Penna. E. Co., 1870, C. P., Montgomery, 27 L Int 237. " ■' Gilmore v. Pittsburgh, Virginia & Charleston R. Co., 1883, 8 Out., 275. Injuries sustained after the corporate works are completed, e.g. by fire from locomotives, do not constitute elements of damage to be assessed in a pro- ceeding to assess damages caused by the construction of the works. Injury to crops between time of location and entry.— Gilmore ^■ Pittsburgh, Virginia & Charleston R. Co., 1883, 8 Out., 275. Damages may be recovered for injuries to crops planted after the location of the works but before bond was given to secure damages or actual entrywas made. Change of location before assessment— Relinquishment of part of land. — Bate v. Phila., Norristown& Phoenixville E. Co., 1883, C. P.. Mont- Part /.] EMINENT DOMAIN. 165 gomery, 1 Montgom., 47. Where a compaaiy before the assessment of dam- ages changes the location of its worlis in such a manner that a part only is re- tained of the land for the appropriation of which the company originally be- gan proceedings, the owner is entitled to damages for the value of the whole property specified under the first location as of the time when it was so taken, less the value of the portion relinquished and restored, as of the time and in the condition in which it was when restored, as affected by the reten- tion and user of the part embraced in the second location ; and also to dam- ages for the temporary deprivation of the relinquished portion. 3. Consequential Damages. Liability for conseg.uential damages as unaffected by the Constitu- tion of 1874. — A corporation in taking private property for public use under the right of eminent domain is jiot liable for consequential damages, except for negligence, unless expressly made so by its charter. Eshleman v. Penna. E. Co., 1872, C. P., Lancaster, 3 Lane. B., No. 39 ; Struthers v. Dunkirk &c. E. Co., 1878, 6 Nor., 282; Woodward v. Webb, 1870, 15 Sm., 254 ; Free- laud V. Penna. E. Co., 1870, 16 Sm., 91 ; Monongahela Bridge Co. v. Kirk, 1863, 10 Wr., 112 ; Clarke v. Birmingham & Pittsburgh Bridge Co., 1861, 5 Wr., 147 ; Monongahela Navigation Co. v. Coon, 1847, 6 Barr, 379. Lycoming Gas & Water Co. v. Moyer, 1882, 3 Out., 615. Prior to the adoption of the Constitution of 1874 the Legislature might in its grant of corporate privileges to an improvement company render it liable for conse- quential damages. Same — When liability is imposed. — Pottatown Gas Co. v. Murphy, 1861, 3 Wr., 257. A corporation's exemption from liability for consequential dam- ages arises only where, being clothed with a portion of the State's right of eminent domain, it takes private property for public use on making proper compensation, and where such damages are not part of the compensation re- quired. The fact of incorporation with the privilege of buying land does not protect the corporation fium liability for damages arising from the prose- cution of the works for which it was incorporated where this amounts to a nuisance. Finn v. Providence Gas & Water Co., 1882, 13W. N. C, 37. Whereacorp- oration authorized to take land necessary for the exercise of its franchises is required simply to "make compensation for damages done," it is liable for both direct and consequential damages. Buckwalter f. Bridge Co., 1861, 2 Wr., 281. Consequential damages may be claimed and assessed against a corporation, if its charter so provides. A charter requirement to pay " any " damages or " all " damages which may be sustained includes a claim for consequential damages. See also Monon- gahela Nav. Co. V. Coons, 1847, 6 B., 379; Mifdin v. Eailroad Co., 1851, 4 H., 182. Cake V. Phila. & Erie E. Co., 1878, 6 Nor., 307. An act of Assembly passed previously to the adoption of the new Constitution giving to a rail- road company power " to take and appropriate such property, however occu- pied, as they may deem expedient for the use and construction of depots " etc., did not authorize the company to so take and appropriate public high- ways without compensation to the abutting owners for the consequential damages. Liability under Constitution of 1874.— Pusey v. Allegheny, 1881, 2 Out., 522. The rule that a corporation to which has been delegated a por- tion of the State's right of emiment domain cannot be held liable for conse- qnential damages resulting from the exercise of that right, has been reversed bv the new Constitution, Article XVI, Section 8. See also Eeading v. Alt- house, 1880, 12 Nor., 400; Minnig v. E. Co., 1882, 11 W. N. C„ 297. 166 EMINENT DOMAIN. [Part I. Same— Penna. Railroad Co.— Implied acceptance of new charter, subject to alteration under Act of May 3, 1855 —Pennsylvania Railroad Co. V. Duncan, 1886, 1 Am., 352. The Pennsylvania Railroad Company is liable for consequential damages arising from the operation of its road. The eighth Section of Article XVI of the State Constitution, providing for the payment of consequential damages by corporations, applies to private as well as municipal corporations. The purchase of the State's Main Line by the Pennsylvania Railroad Company under the Act of May 15, 1857 was an ac- ceptance by that Company of a new charter at that time, and it thereupon became subject to the provision of the Act of May 3, 1855 that the charters of all corporations should be subject to alteration or revocation by the Leg- islature. The fact of the Company's purchase of the Main Line from the State under legislative authority did not exempt it from the operation of future legislation. By its acceptance of the Act of April 4, 1868 the Company became subject to the provisions of the Constitutional Amendment of 1857, which supplied the provisions of the Act of 1855. The eighth Section of Article XVI of the Constitution applies to corp- orations existing at the time it was framed where their charters were sub- ject to alteration under the Act of 1855 or the Amendment of 1857. Thes 10th Section of Article XVII wasnot intended to apply to such corporations. See also Williamsport v. Williamsport Railway Co., 1887, C. P., Lycom- iag, 3 C. C. R., 39. Same— Beading Railroad Co. — Philadelphia & Reading Railroad Co. V. Patent, 1886, 17 W. N. C, 198. The Philadelphia & Reading Railroad Com- pany, although originally chartered prior to the Act of May 3, 1855 and the Constitutional Amendment of 1857, making the charters of corporations thereafter created subject to alteration or revocation by the Legislature, ren- dered itself subject to the provisions of that Act and Amendment by accept- ing subsequently additional privileges and powers under the Acts of Aug. 23, 1864, and Mar. 19, 1872. It is therefore liable, under the Constitution of 1874, for consequential damages in the operation of its road. The 8th Sec- tion of Art. XVI of the Constitution applied to corporations existing at the time of its enactment whose charters were subject to the provisions of the Act of 1855 and the Amendment of 1857. Ritchie v. Pittsburgh & Lake Erie R. Co., 1884, C. P., Lawrence, 1 Lane. Law Rev., 213. Corporations are liable under the new Constitution for only such injuries inflicted in exercising the right of eminent domain as are remediable at common law. Penna. R. Co. v. Lippincott, 1887, 19 W. N. C, 513, 44 L. Int., 240. A corporation is made liable by the Constitution of 1874 for every injury in- flicted in the exercise of its right of eminent domain for which a nat- ural person would be liable at common law ; but not further. It is not lia- ble to any one for the results flowing from its authorized operations upon its own property in such a manner as not to constitute negligence or amount to a technical nuisance. Damage so caused is damnum absque injuria. Liability of the purchasers of the State Works.— West Branch & Sus- quehanna Canal Co. v. Miilliner, 1871, 18 Sm., 357. The purchasers of the State Works and their vendees were subject, in their operation of the works, to only such liabilities as rested upon the State, and were therefore not liable for consequential damages unless expressly made so by the charter. See also Freeland v. Penna. R. Co., 1870, 16 Sm., 91: McKeen v. Delaware Di- vision Canal Co., 1865, 13 Wr., 424. -P"'"' J"-] EMINENT DOMAIN. 167 4. Tfte Measure of Damages : For What Damages may be Becov- ered Etc. a. In General, The general rule as to the measure of damages.— The measure of damages is the difference between the market value for any purpose of the property affected, as a whole, before the construction of the corporate works, and its market value for any purpose as affected by, and after such construc- tion. Speculative damages are not allowed. Schuylkill Navigation Co. v. Thobum, 7 S. & E., 411 ; Perrysville &c. Turnpike Co. v. Thomas, 1852, 8 H., 91 ; Harvey v. Lackawanna & Bloomsburg E. Co., 1864, 11 Wr. 428 • EastPenna. E. Co. v. Hottenstein, 1864, 11 Wr., 28 ; Hornstein i: Atlantic & Great Western Ewy. Co., 1865, 1 Sm., 87; Delaware, Lackawanna & Western E. Co. v. Burson, 1869, 11 Sm., 369; Lodge i-. Prankford & Holmesburg E. Co., 1873, C. P., 30 L. Int., 92; Danville, Hazle- ton & Wilkesbarre E. Co. v. ©earheart, 1875, 32 Sm., 260; Same v. McKel- vey, 1875, 1 W. N. C, 338; East Brandy wine & Waynesburg E. Co. t'. Eanck, 1875, 28 Sm., 454; McFerren v. Mont Alto E. Co., 1875, 32 L. Int., 328, 2 W. N. C, 40; Shenango & Allegheny E. Co. v. Braham, 1876, 32 L. Int., 186; Pittsb'gh, Virginia & Charleston E. Co. v. Beutley, 1878, 7 Nor., 178 ; Pittsb'gh & Lake Erie E. Co. v. Eobinson, 1880, 14 Nor., 426 ; Pittsb'gh & Western E. Co. v. Patterson, 1884, 11 Out., 461; Pittsb'gh, Brad- ford & Buffalo E. Co. V. McCloskey, 1885, 16 W. N. C, 561, 43 L. Int., 301, 33 Pitts. L. J., 175, 3 Lane. L. Eev., 294; Pittsb'gh Junction E. Co. u Mc- Cutcheon, 1886, 18 W. N. C, 527 ; Griffin v. Schuylkill Valley E. Co., C. P., Montgomery, 1 Moutgom. Co. E., 169, 2 Del. Co. E., 425; Setzler v. Schuyl- kill Valley E. Co., 1886, 2 Am., 56. Where times for estimating values are four years apart.— Delaware, Lackawanna & Western E. Co. v. Burson, 1869, 11 Sm., 369. This rule is to be applied where the times at which the respective values are to be calculated are four years apart. Value for special purpose not to be considered. — Shenango & Alle- gheny E. Co. V. Braham, 1876, 33 L. Int., 186. The damages to a farm through which corjwrate works are constructed are not to be measured by the depreciation in the value of the farm as a ferm, but by the depreciation in its general market value for any purpose. Measure of damages to tenants. — Philadelphia & Beading E. Co. v. Getz, 1884, 9 Out., 547. The measure of damages to a tenant of the land taken is the difference between the value of his interest unaffected by the taking and its value as affected by it ; and when he uses the property for manufacturing purposes, he is entitled to such damages not only to the leasehold but also to the machinery and fixtures. If the location oi the works necessitates the removal of the site of such manufacture to another place, he is entitled to the expense of the removal and to the difference be- tween the value of the machinery in the business as conducted on the land taken and its value when removed and applied to use elsewhere. See also appeal from second trial of same case, 18 W. N. C, 193. As to lease of ferry franchise, see Pitts. & Lake Erie E. Co. v. Jones, 1885, 1 Am., 204, infra. Pennsylvania E. Co. v. Eby, 1884, 11 Out., 166. Where a corporation which had made an unlawful entry had filed its bond for damages about six months after the entry, and the court had charged, in an action of trespass against the company by a tenant, that damages accruing after the filing of the bond must be recovered under the latter and not in the action of trespass, it is error to allow the calculation of damages to goto the jury con- taining an item of " damages for being deprived of lease for two years," a part of the period being since the filing of said bond. 168 EMINENT DOMAIN. [Port I. Additional damage caused by new use of land already appropri- ated.— Mifflin V. Harrisburg &c. Bailroad C!o., 1851, 4 H., 182. Where a railroad company is authorized to lay its tracks ax>on the road of a tnmpike company whose corporate rights have been purchased by the lormer, an owner of land through which such turnpike was constructed and who was compensated in damages for such occupation by the turnpike company is entitled — where the railroad company's charter provides for compensation for consequential damages — ^to recover such compensation from the railroad com- pany for the additional damage to his abutting property caused by the con- struction of the railroad, and notwithstanding that the limits of the latter are no wider than those of the turnpike. See also Mumma v. Harrisburg &c. R. Co., 1851, C. P., Dauphin, 1 Pear., 24. Gordon v. Penna. E. Co., 1878, 6 W. N. C, 405. The fact that damages have been paid for injuries inflicted by the construction of a canal is no de- fence to a claim for additional damage inflicted upon the land in the con- struction of a railroad by a company which has purchased the bed of the canal. Pittsburgh & Lake Erie R. Co. v. Bruce, 1882, 6 Out., 23. Where the property and franchises of an insolvent canal company are sold to a railroad company, the latter cannot construct its tracks upon the right of way acquired by the canal company without making compensation to the owner of the land. Although the canal was made by the Legislature a public high- way (which might be used by anyone upon the payment of toll), it is not a highway the use of which can be granted by the State to a corporation without the payment of compensation by the latter to the owners of the fee. Lycoming Gas & Water Co. o. Moyer, 1882, 3 Out., 615. When property taken by a corporation in the exercise of the power of eminent domain has been already lessened in value by the exercise of the same power by another corporation, the damages must be estimated with reference to the existing deterioration. Therefore in an action to recover damages from the first corporation evidence of the recovery of damages from the latter is inadmissi- ble, since the damages already recovered could not have included those sought to be recovered. Injury done to water powers. — Dorian v. East Brandy-wine & Waynes- burg Railroad Co., 1864, 10 Wr., 520. Injury done to an unused water power is a proper subject of compensation. For the purpose of ascertaining the measure of damages evidence of what would be the extent of the power if certain supposed alterations were made is inadmissible. The measure of damage is its market value in its present condition. Barclay RaUroad Co. v. Ingham, 1860, 12 C, 194. Injury done to a water power situated on one of the smaller streams of the State is a proper subject of compensation although the stream may have been declared, by act of As- sembly, a public highway. Spring.— Lehigh Valley Raikoad Co. v. Trone, 1857, 4 C, 206. A spring of water belonging to the owner which has been cut off or injured by the construction of the road is a proper subject of compensation, although it be situated below high-water mark on a river. Loss of custom to mill.— Western Pennsylvania R. Co. .;. Hill, 1867, 6 Sm., 460. Damages may be allowed for the loss of custom by a mill by rea- son of danger and inconvenience in approaching and returning from it, caused by the construction of the works. Pittsburgh, Virginia & Charleston R. Co. v. Vance, 1887, 19 W. N. C, 321, 44 L. Int., 254. Evidence of a loss of custom to a mill situated upon the land is admissible for the purpose of showing how and to what extent the market value of the land has been depreciated ; but it is error to admit it as a distinct and legitimate item of damage. Loss of custom to ferry— Obstruction of approach to,— Pittsburgh & Lake Erie R. Co. v. Jones, 1885, 1 Am., 204. The lawful construction of a Part /.] EMINENT DOMAIN. 169 railway over a street, whereby business of a ferry is diminished or lost through the railway's obstruction of the approach to the ferry landing, is not an injury to private property in the franchise of the ferry within the intend- ment of the Constitution, where the ferry franchise gives no right to a par- ticular landing. Where such a franchise has been leased by the owner of the ferry franchise, the only damage which can be recovered by the latter is the amount of the depreciation in the value of the unexpired lease by reason of such construction of the railroad. Advantages and disadvantages— What advantages are to be con- sidered. — Hornstein v. Atlantic & Great Western Railroad Co., 1865, 1 Sm., 87. Only such advantages as are special and peculiar to the property in question are to be considered ; not those common to the public. See also IV, 4, a, b. Same — Advantages to adjoining separate tract. — Harrisburg & Po- tomac E. Co. i>. Moore, 1877, 4 W. N. C, 532. Advantages accruing to an adjoining but separate tract owned by the same person but not touched by the works are not to be considered. Same — What advantages are special. — Pittsburgh Southern E. Co. v. Reed, 1886, 44 L. Int., 92. Advantages to the property aiising from the construction of the works are to be considered as special although they may be enjoyed by the owners of neighboring properties also. Same — Contingent disadvantages as substantive claim — ^Unopened mines — ^Increased difficulty of mining. — Searle v. Lackawanna & Blooms- burg Railroad Co., 1859, 9 C., 57. The owner may be allowed the market value of the land and all actual damages arising from the manner in which the works pass through the property and affect the improvements ; but con- tingent disadvantages, although they may be set off against the advantages to be derived from the construction of the road, cannot be made the basis of a substantive claim. The jury is not at liberty to estimate the value of un- opened mines, nor to calculate the increased difiaculty of working them after the construction of the road. Same — ^Proposed improvements by corporation. — Pittsburgh, Vir- ginia & Charleston R. Co. v. Rose, 1873, 24 Sm., 362. Improvements which the company proposes to make in the future, unconnected with the finishing of the railway, cannot be considered : affirming 20 Pitts., L. J., 159. Same— Possible injuries from negligent operation of works.— Setz- ler V. Penna. Schuylkill Valley R. Co., 1886, 2 Am., 56. Damages which may possibly result from neeligent or unskillful operation of the works are not to be considered. The ordinary risk of fire from locomotives cannot be considered except as an element in actually depreciating the market value. Same— Keeping others from owner's neighborhood.— Patten v. North- ern Central Railway Co., 1859, 9 C, 426. That the owner is deprived by the construction of the road of the advantage of keeping off others from his neighborhood and thus saving himself from the annoyance and risk of their , proximity, is not a proper subject of compensation : affirming 1 Pear., 48. Nuisance maintained by owner.— Harvey v. Lackawanna & Blooms- burg Railroad Co., 1864, 11 Wr., 428. Damages cannot be recovered for the interference by the construction of the works with what was a nuisance main- tained by the owner, e. g., train ways constructed by the ovmer for the use of his coal cars across a public road. Improvements by owner to prevent entry.— Shick v. Penna. R. Co., 1867 C P Dauphin, 1 Pear., 262. Where a corporation has secured a right of entry by filing its bond for the damages, an owner who makes im- provements upon the land which it is proposed to take, for the purpose of preventing the entry, can neither prevent the entry nor recover damages for such improvements. 170 EMINENT DOMAIN. [Part I. Property placed on land by trespassing corporation.— Justice v. Nesquehoning Valley E. Co., 1878, 6 Nor., 28. Where a company enters upon laud without paying or tendering security for the damages, and there- by becomes a trespasser, the value of property of the company placed, in such proceeding, upon the land, cannot be made an element in the valuation of the land in a subsequent assessment of damages. Punitive damages — ^Bad faith by corporation. — Pittsburgh, Chartiers & Youghiogheny E. Co. r. Scully, 1885, 16 W. N. C, 213. Where a corpor- ation exercises its right of eminent domain in bad faith, e. g., where a rail- road company appropriates land professedly for the construction of a side track to reach other land purchased by it but really for the purpose of appro- priating stone in the land crossed, punitive damages will be awarded against it. Inconvenience from division of property — Fencing etc. — Wateon v. Pittsburgh & Connellsville EaUroad Co. , 1860, 1 Wr. , 469. The inconvenience arising from a division of the property or from increased difficulty of access, and the cost of necessary additional fencing, are proper subjects of compen- sation. Perrysville &c. Turnpike Co. ■«. Bamage, 1852, 8 H., 95. Damages may be recovered for the necessity of erecting new fences, and for the destruction of the symmetry of a field, if productive of real injury. Where corporate property and franchises are taken.— Montgomery County V. Bridge Co., 1885, 42 L. Int., 465. Where both the material prop- erty and the franchises of a corporation are taken under the right of eminent domain, e. g., those of a toll-bridge company, compensation must be made for the franchise as well as for the other property ; and the proper measure of damages is the market value of the stock at the time of the taking. Same — ^Limitation of damages for, — Eoyersford Bridge, 1886, Q. S., Montgomery, 2 Montgom. Co., 21. A statute limiting the amount of dam- ages to be paid by municipalities for property and franchises of private corp- orations taken for free public use is unconstitutional. Affirmed : Id., 61, 2 Am., 627. See also Phoenixville Bridge, 1886, C. P., Chester, 2 Montgom. Co., 157. Trespass— Cutting timber— Act of Mar. 29, 1824.— Bethlehem South Gas & Water Co. v. Yoder, 1886, 2 Am., 136. The Timber Act of March 29, 1824, imposing double and treble damages for the wilful cutting of another's timber, does not apply to the cutting of timber upon land taken by a corp- oration under the right of eminent domain, even where the corporation's entry is a technical trespass. Previous claim of smaller sum— Estoppel. — Pennsylvania&New York R. Co. V. Bunnell, 1876, 31 Sm., 414. A claim of a certain amount of dam- ages does not estop the plaintiff to claim a larger amount in an amended petition. b. Evidence of Values. Evidence of particular sales in neighborhood.— Pittsburgh, Virginia & Charleston E. Co. v. Eose, 1873, 24 Sm., 362. An instruction that a sale of land in the vicinity is the best evidence of market value is properly re- fused. Such a sale is a test, but the true test is the opinion of witnesses in view of location, productiveness and the general selling price in the vicinity : affirming 20 Pitts., L. J., 159. East Pennsylvania Eailroad Co. v. Hiester, 1861, 4 Wr., 53. Evidence of the prices paid for lands in the neighborhood in particular instances is not admissible. The evidence must disclose the public and general estimate. An unaccepted proposition to waive damages if the road were located in a particular place is not admissible. As to first point see also Penna. & New York E. Co. v. Bunnell, 1876, 31 Sm., 414; Pittsburgh & Western E. Co, v. Pattereon, 1884, 11 Out., 461. Part /.] EMINENT DOMAIN. 171 Pittsburgh & Lake Erie R. Co. v. Robinson, 1880, 14 Nor., 426. The opinion of a witness whose knowledge of the value of lands in the neighbor- hood is based solely upon a few purchases made by the company is admissi- ble, the value of the opinion being for the jury. Competency of witnesses— Witness need not be expert.— Pennsylva- nia & New York R. Co. v. BunneU, 1876, 31 Sm., 414. The question of market value is not one of science or skill upon which only an expert can give an opinion. Persons resident in the neighborhood are as such pre- sumed competent witnesses as to that point. Degree of knowledge requisite. — Pittsburgh, Virginia & Charleston R. Co. V. Vance, 1887, 19 W. N. C, 321, 44 L. Int., 254. A witness to the market value is not competent where he testifies that he is " not much ac- quainted" with the land and has been on only a part of it a few times. " In order that a witness may be competent to testify intelligently as to the market value of land, he should have some special opportunity for observa- tion ; he should, in a general way, and to a reasonable extent, have in his mind the data from which g, proper estimate of value ought to be made ; if interrogated, he should be able to disclose sufficient actual knowledge of the subject to indicate that he is in a condition to know what he proposes to state, and to enable the jury to judge of the probable proximate accuracy of his conclusions. " Pittsburgh Southern R. Co. v. Reed, 1886, 44 L. Int., 92. Where the property is a farm, a witness who is a farmer, who has visited and examined the property within a year before the trial with a view to purchasing it and who has a general idea of the value of land in the county, is competent. See also Pittsbgh. & Lake Erie R. Co. a. Robinson, mpra. Viewers. — Harrisburg & Potomac R. Co. v. Stayman, 1876, 2 W. N. C, 103. Upon appeal from the award a person whose knowledge of the land is only such as he gained in the capacity of viewer is a competent witness as to facte within his personal knowledge. See also Perrysville &c. Turnpike Co. V. Thompson, 1852, 8 H., 91. Dorian v. East Brandy wine & Waynesburg Railway Co., 1864, 10 Wr., 520. Upon an appeal from the assessment, a viewer is a competent witness. His testimony cannot be objected to on the ground that the construction of the work was not completed when his examination of the premises was made, the location not having been changed from that which was then pointed out to him in the presence of the parties ; nor on the ground that it was received before he had been cross-examined respecting the mode in which his opinion was formed, such cross-examination being out of time. Evidence as to advantages and disadvantages to the land.— Perrys- ville &c. Turnpike Co. v. Rea, 1852, 8 H., 97. In a proceeding against a corporation to recover damages done to land by the construction of its works, under an act of Assembly directing the advantages as well as the disadvan- tages in such construction to be considered, it is competent for the company to prove that the value of the land had been increased by such construc- tion. Penna. & N. Y. R. Co. i'. Bunnell, 1876, 31 Sm., 414. The plaintiff may ask a witness whether the location and construction of the works upon the plaintifl's farm was an advantage or disadvantage to it, and in what way. Same— Cliange of location of post-office.— Penna. & N. Y. R. Co. e. Bunnell 1876, 31 Sm., 414. Evidence that after the construction of the road the postK)fflce'was moved nearer to the farm is inadmissible. Owner's declarations and offers.— East Brandywine & Waynesburg R. Co. V. Ranck, 1875, 28 Sm., 454. The owner's declarations are competent evidence when offered by the company ; so also axe the owner's offer of the land at a fixed price and the sale of a portion of it. Previous offer of price by witness.— Dan^-ille, Hazleton & Wilkesbarre R. Co. V. Gearheart, 1875, 32 Sm., 260. A witness who has testified as to 172 EMINENT DOMAIN. [_Parl J. the value per acre of the land may be asked whether before the construction of the work was contemplated he did not offer a certain' difierent sum per acre. Conjectural opinions as to value after future construction. — ^Watson V. Pittsburgh & Connellsville Eailroad Co., 1860, 1 Wr., 469. Where dam- ages are assessed after the construction of the works the opinions of wit- nesses as to the difference in the values of the land before the construction and after it are admissible in evidence. But when the damages are assessed before the completion of the works, the conjectures of witnesses as to what the value of the land will be after the completion of the works are not ad- missible. Viewers may examine. — Pennsylvania Railroad Co. v. Keiffer, 1853, 10 H., 356. Viewers may examine witnesses as to such facts as are pertinent. c. Interest on the Award. Hays V. Baltimore & Ohio R. Co., 1882, 3 Penny., 52. An award of dam- ages bears interest only from the date of filing. It is the duty of the jury to file the award, and if they fail to do so, the proper practice is to compel the filing of the award by an order of court. Pennsylvania R. Co. v. Cooper, 1860, 8 Sm., 408. Damages bear interest from the time of the filing of the report although final confirmation is de- layed by exceptions. Still, 1874, C. P., Chester, 2 Chest. Co., 233. "Where exceptions filed by the petitioner are dismissed, the award bears interest only from the date of the dismissal. Philadelphia, Wilmington & Baltimore Railroad Co. v. GeSsner, 1853, 8 H., 240. Where a company has occupied for several yeaj?s the land of a lunatic, interest upon the damage sustained may be recovered, although either party was entitled by the act of incorporation to institute proceed- ings for damages. Interest pending appeal. — Davis v. Northern Peuna. R. Co., 2 Phila., 146. Interest must be paid upon the award during the pendency of an ap- peal to the Supreme Court, when the company abstains from taking posses- sion. Same— Withdrawal of appeal.— Donaldson v. Penna. R. Co., 1884, 15 W. N. C, 312. Where the landowner appeals and afterward withdraws the appeal, he cannot demand that the report be confirmed nunc pro tune as of the date of its filing ; he is entitled to interest only from the date of with- drawing the appeal: affirming 14 W. N. C, 143. d. Costs. Philadelphia, Germantown & Norristown Railroad Co. v. Johnson, 1837, 2 Wh., 275. An owner obtaining an award of damages for the opening of cor- rate works through his land is not entitled to the costs of witnesses exam- ined before the viewers. Herbein v. Railroad Co., 1840, 9 Wts., 272. Costs are not recoverable where they are not given by the statute which provides the remedy. Shick, 1868, C. P., Dauphin, 1 Pear., 266. No costs can be allowed to the landowner unless some damages are awarded and the report confirmed Winebiddle v. Penna. R. Co., 1852, 2 Gr., 32. A tender of money for dam- ages need not be brought into court and pleaded ; and if it is not accepted and on trial the owner recovers less than the amount tendered, he cannot recover costs. Kauffmann v. Reading & Columbia R. Co., 1880, C. P., Lancaster 12 Lane. B., 107. A petitioning landowner is not entitled to have taxed •P<"^ 1-1 EMINENT DOMAIN. 173 against the company the costs of a former view in which the report was so defectively drawn as to necessitate its rejection. Pennsylvania Railroad Co. v. Keififer, 1853, 10 H., 356. The costs recov- erable by an owner to whom damages are awarded include the costs of the service of the notice of the appointment of viewers and mileage for such service of subpoenas upon witnesses and mileages, and of the attendance and mileage of witnesses. Blacklan v. Penna. E. Co., 1881, C. P., 11 W. N. C, 155. A viewer who acts upon several x>etitions at the same time is not entitled to the per diem al- lowance in more than one case. v. Proceedlnss and Practice in tlie Assessment of Damag^es. 1 Statutory Remedies and. Remedy by Action. Special statutory remedy must be pursued.— Where a special statutory remedy is provided, a common law action will not lie. The statutory method must be pursued. McKinney v. Monongahela Navigation Co., 1850. 2 H., 65 ; Canal Co. v. Shimp, 2 Leg. Gaz., 181 ; Cumberland Valley E. Co! r. McLanahan, 1868, 9 Sm., 23 ; Famham v. Del. & Hud. Canal Co., 1869 11 Sm., 265; Spangler's Appeal, 1870, 14 Sm., 393; Koch v. Williamsport Water Co., 1870, 15 Sm., 288; Bald Eagle Boom Co. v. Sanderson, 32 Sm.. 402; Nichols 1). Del. & Hud. Canal Co., 1876, 2 W. N. C, 708, 24 Pitts. L. J.; 29; Stump's Appeal, 1881, 38 L. Int., 205, 13 Lane, B., 93 ; Bunu's Appeal, 1884, 9 Out., 49. Same — ^In taking corporate property and franchises. — Eoyersford Bridge, 1886, Q. S., Montgomery, 2 Montgom. Co., 21. Where the charter of a corporation provides a method by which its property and franchises may be taken for public use. that method must be pursued where the general law relating to such subjects expressly leaves all such provisions in particular charters unrepealed. Affirmed: Id., 61, 2 Am., 627. See also Phoenixville Bridge, 1886, C. P., Chester, 2 Montgom. Co., 157. Parties must endeavor to agree before resorting to statutory rem- edy — Breach of agreement. — Bertsch v. Lehigh Coal & Navigation Co., 1833, 4 E., 129. Where a special remedy is provided by an act of Assembly for the recovery of damages for injuries done by a corporation to the land of private ovsmers, it is to be resorted to only when the parties are unable to agree as to the amount of compensation which should be paid. Where an agreement has been entered into, fixing the amount of compensation and the specific land to betaken, the remedy for a breach thereof is by an action upon the agreement. But if the corporation disregard such agreement and ap- propriate land other than that specified, the owner may rescind the contract and pursue the statutory remedy. Statute of limitations. — Delaware, Lackawanna & Western E. Co' i: Burson, 1869, 11 Sm., 369. The statutory remedy is not barred by thestat- ute of limitations : overruling Forster v. Cumberland Valley E. Co., 1854, 11 H., 371. See also McClinton v. Pittsbgh., Ft. Wayne & Chicago E. Co., 1870, 16 Sm., 404. Common law action for consequential damages. — ^White Deer Creek Improvement Co. v. Sassaman, 1871, 17 Sm., 415. Where the charter of a corporation provides no special remedy for certain classes of injuries result- ing from the exercise of its franchises, and the stockholders are made per- sonally liable for consequential damages, a common law action wUl He. Eitchie v. Pittsburgh & Lake Erie E. Co., 1884, C. P., Lawrence, 1 Lane. L. Eev., 213, 31 Pitts. L. J., 424. The proper remedy for consequential damage inflicted by the construction of corporate works is an action on the 174 BMIN ENT DOMAIN. [Pwrt I. case, and not a statutory assessment of damages. See also Patent v. Phila- delphia & Reading R. Co., 1884, C. P., 14 W. N. C, 545, 1 Lane. Law Rev., 217, Levering v. Phila.. Germantowu & Chestnut Hill R. Co., 1886, C. P., 18 "W. N. C, 50. Entry before approval of bond for damages — Trespass. — Dimmick r. Brodhead, 1874, 25 Sm. 465. The entry upon land taken by a private corp- oration under the right of eminent domain, before the approval of the bond for damages, is a trespass, for which an action will lie against the parties entering: affirming 6 Leg. Ga,z., 138. See also Bethlehem South Gas & Water Co. v. Yoder, 1886, 2 Am., 136; Phila., Newtown & New York R. Co. V. Cooper, 1884, 32 Pitts. L. J., 120. Brown u. PoweU, 1855, 1 C, 229. If a corporation, under a license from the owner of the fee, enter upon land occupied by a tenant for years without any assessment or payment of damages, the tenant may maintain an action of trespass against it, or against its agents or servants. Pennsylvania R. Co. v. Eby, 1884, 11 Out., 166. A tenant is "an owner or party interested," entitled to security before entry can be made on the property without his consent. He may recover in trespass for injury done by an unlawful entry. See also Brown v. Powell, 1855, 1 C, 229 ; N. Penn. E. Co. V. Davis, 1856, 2 C, 238; Allegheny & Perrysville Turnpike Co. V. Brosi, 1853, 10 H., 29; Phila. & Reading E. Co. v. Getz, 1884, 9 Out., 547. Same — Security given after unlawful entry. — Pennsylvania R. Co. v. Eby, 1884, 11 Out., 166. The giving of security, after an unlawful entry, is not a bar to an owner's or tenant's proceeding in an action of trespass. See also Bethlehem South Gas & Water Co. v. Yoder, 1886, 2 Am., 136. Taking beyond authorized line — Trespass. — White «. McKeesport, 1882, 30 Pitts. L. J., 233. The compensation provided for by the State Con- stitution for the taking of private property for public use cannot be recovered in an action of trespass quare clausum /regit brought against a municipality ■upon the supposition that the taking of the plaintiff's land extended beyond the authorized line. Same— Agreement after unlawful entry — ^Breach.— Ejectment. — Philadelphia, Newtown & New York E. Co. v. Cooper, 1884, 9 Out., 239. Where land is taken by a corporation under the right of eminent domain without first paying or securing compensation to the owner, and the latter subsequently agrees with the corporation to accept a specific sum for the right of way over his property, but such agreement is never fulfilled by the company by payment at the specified date, the owner may bring an action of ejectment against the company, and the unexecuted agreement cannot be set up in defence. Breach of covenant to change location— Mines. — Mine Hill & Schuylkill Haven E. Co. v. Lippincott, 1878, 5 Nor., 468. Where a corp- oration has a right of way over mining lands, and covenants with the owner thereof that upon notice it will change its location, or permit the coal under- neath the way to be mined, a tenant of such owner, the terms of whose lease give him the right to mine all the coal in the land demised, may sue in the name of the landlord for the breach of such covenant : affirming 2 Leg. Chron. 337. Ground rent— Bill for apportionment.— Voegtly v. Pittsburgh & Fort Wayne R. Co., 1859, 2 Gr., 243. The owner of a ground rent cannot main- tain against a corporation which has appropriated a part of the land out of which the rent issues a bill to compel an apportionment of the rent and an extinguishment by the company of so much of the rent as is chargeable to the part appropriated. Such an owner retains unimpaired his remedy against the ground, and must exhaust that remedy in the first instance. Action of trespass by tenant— Lawfulness of entry— Lessor's title- Evidence.— Pennsylvania R. Co. V. Eby, 1884, 11 Out., 166. In an action of trespass by a tenant for a railroad company's unlawftil entry on the land Part /.] EMINENT DO-MAIN. 175 the record of a suit by the lessor against the company for his damages, con- taining the company's bond, is not admissible in evidence to show that the entry was lawful ; but the record of an action of ejectment by a third party against the lessor for the land leased and a disclaimer filed by the lessor for a part of the land leased are admissible as affecting the measure of damage suffered by the tenant. Filing of bond etc. after commencement of action of trespass — Effect— Damages.— Bethlehem South Gas & Water Co. v. Yoder, 1886, 2 Am., 136. Where an action of trespass is brought for a company's entry without paying or filing a bond for compensation and a few days thereafter the company files its bond and has a jury appointed to assess the damages, although the plaintiff would be entitled ordinarily in the action to recover forthe unlawful entry and for any damages to the property down to the time of filing the bond, he cannot recover such damages when they have already been allowed by the jury. Illegal construction of works— Amendment of declaration.— Pitts- burgh Junction R. Co. u. McCntcheon, 1886, 18 W. N. C, 527. A plaintiff filing a declaration in an action for damages caused to his property by the construction of a corporate work in a manner alleged in such declaration to be illegal may amend by adding a count proceeding upon the assumption that such construction was legal but seeking the recovery of consequential damages therefor. Contract to purchase the land— Breach— I^ectment by sheriff's vendee — Stay. — Pittsburgh & Steuben ville E. Co. v. Jones, 1868, 9 Sm., 433. Where specific performance of a corporation's contract to purchase land taken by it in the construction of its works is decreed, with leave to the vendor to issue execution upon the company's failure to comply with the decree ; and upon such failure execution is so issued ; the purchasers at the sheriff's sale under such execution may maintain ejectment for the land, and their title is subject to no easement by the company although the latter has constructed its works on the land. But in affirming a judgment for the plaintiff in such a case, a stay of pro- ceedings will be ordered for the purpose of giving the coippany an opportun- ity for an assessment of damages. The vendor's sale upon the judgment under the decree is a virtual recission of the contract. Failure of execution for damages— State works— Hjectment.-North Branch Canal Co. v. Hireen, 1863, 8 Wr., 418. Where an owner obtained a judgment and verdict against a canal company for land taken by the State in the construction of the State Canal and purchased from the State by the defendant company, held that he could not, after the issue of execution upon such judgment and the return ot Nulla bona, recover the land in eject- ment. Injunction to restrain threatened injury without payment or secur- ing of compensation. — Berlew v. Electric Illuminating Co., 1886, C. P., Northumberland, 1 C. C. R., 651. Although an action on the case is the ap- propriate remedy for the recovery of consequential damages for injury already done to private property by a corporation's taking or iiyuring it under the right of eminent domain, it seems that the threatened infliction of such injury without the previous payment or securing of compensation may be restrained by injunction. Iniunction— To restrain continued use of land taken without com- pensation— Land-owner's laches— Ejectment.— Seal v. Northern Cent- ral R Co., 1868, C. P., Dauphin, 1 Pear., 547, 2 Leg. Gaz., 182. An injunc- tion will not be granted to restrain a corporation from continuing to use land taken by it without paying or securing compensation, especially where the use has been long continued and the land-owner has been guilty of laches. The remedy is by ejectment. Entry pending appeal— Failure to pay damages— Ejectment.— Lev- 176 EMINENT DOMAIN. [PaH J. ering v. Philadelphia, Germantown & Norristown Eailroad Co., 1844, 8 W. &S., 459. Where a corporation has entered upon land pending the owner's appeal from the award of viewers appointed nnder the provisions of the com- pany's charter to assess his damages, the owner may recover the land in eject- ment if the company do not pay the amount of the final judgment. I^ectment pending certiorari in statutory proceedings.— Schuler v. Northern Liberties &c. Eailroad Co., 1838, 3 Wh., 555. An action of tres- pass cannot be sustained against a corporation during the pendency of a cer- tiorari to remove the proceedings for an assessment of damages for land taken for the construction of its works. After final award and payment of the amount thereof into court, the company is seized of the land, and the allow- ance of the vrrit ot certiorari does not divest the seisin. ITegligeuce in constructing corporate works. — Pittsburgh, Fort Wayne & Chicago E. Co. v. Gilleland, 1867, 6 Sm., 445. A common law action may be brought against a corporation for unskillfulness ornegligence in construct- ing its woiks, damage being thereby done to the plaintiff. Compensation for such injuries cannot be included in the assessment of damages for enter- ing upon and taking the land. Negligence in maintaining corporate works. — Schuylkill Navigation Co. V. McDonongh, 1859, 9 C, 73. The special provision in its charter for remedies for injuries arising from a corporation's construction of its works does not exclude the common law remedies for the corporation's abuse of its fi:anchises or neglect of its duty to properly maintain such works. See also Penna. & Ohio Canal Co. v. Graham, 1869, 13 Sm., 290; Fehr v. Schuylkill Navigation Co., 1871, 19 Sm., 161. Arbitration— Extent of submission. — Miller v. E. & W. V. R. Co., 1885, C. P., Lackawanna, 2 C. P. Eepr., 10. A submission to arbitration of " the entire question of damages to the premises, actual or constructive, pres- ent or future," caused by a corporation's entry thereon nnder the right of eminent domain, includes such damages only as are suffered by the com- pany's exercise of its right of eminent domain. Frovisionfor different remedies in charter and in supplement.— Knorr r. Gennantown &c. Eailroad Co., 1839, 5 Wh., 256. Where by its charter a corporation is made liable to an action for damages for the omission of a cert- ain duty to the owner of land upon which its works are to be constructed, in repairing an injury caused by such construction, and by a supplement to its charter, permitting a change of location, provision is made for the assess- ment by jury of damages occasioned by such change, the injury made rem- ediable by action under the original act is remediable only by the statutory method when it occurs after the passage of the supplement. Insolvency of corporation— Equitable remedies.— Stump's Appeal, 1881, 38 L. Int., 205, 13 Lane. B., 93. The insolvency of a defendant corp- oration is not sufficient to confer jurisdiction in eqtiity to remedy an injury for which a special statutory remedy has been provided. Issue in trespass on appeal. — Philadelphia, Gennantown & Norristown Railroad Co. v. Smick, 1837, 2 Wh., 273. Upon an appeal from an award of viewers appointed in accordance with the charter of a corporation, the court may order an issue to be made up between the parties • in an action of tres- pass quare cUmaum fregii. Judgment in ejectment— Restraining execution thereon pending statutory assessment.— Pittsburgh & Lake Erie R. Co. 0. Bruce, 1882, 6 Out., 33 It seems that where a judgment is obtained in an action of eject- ment against a railroad company for entry upon land vrithout payment or tender of damages, the company may secure its right of way and save its improvements by having the damages assessed as provided by law, and the court may by injunction restrain execution upon the judgment until this is accomplished. P>l'''tl.'] EMINENT DOMAIN. 177 3. The Bond for Damages. Remedies for corporation' g entry hefore paying compensation or filing land there- for, see also V, 1. Entry -without paying or securing compensation.— Colgan v. Allegheny Valley R. Co., 1872, D. C, Allegheny, 3 Crum., 394, 3 Leg. Opin., No. 4, 19 Pitts. L. J., 152. Under the old Constitution a private corporation could not enter upon private property under the right of eminent domain without paying or securing compensation, notwithstanding the right so to do was given hy its charter. The provision of an " adequate remedy " for the obtaining of compensa- tion was not sufficient in the case of a private corporation. See also McClin- ton V. Pittsburgh, Fort Wayne & Chicago R. Co., 1870, 16 Sm., 404. Same — Consequential damages.— Canal Co. v. Shimp, 1870, 2 Leg. Gaz., 181. Consequential damages need not be prepaid or secured before entrv. See also Kochu. Williamsport Water Co., 1870, 15 Sm., 288. Approval of bond not conclusive of right of entry — ^Appeal.— Slo- cum's Appeal, 1882, 12 W. N. C, 84.. An order approving the company's bond for damages is not conclusive of the company's right to enter ; it is in- terlocutory merely, and not the subject of appeal. Date of appropriation, when not fixed by filing of bond.— Davis v. Titusville & Oil City R. Co., 1886, 44 L. Int., 93. The appropriation is not fixed as of the date of the filing of a bond for damages where the location and original entry was without objection on the part of the owner. Effort to agree should precede filing of bond.— Philadelphia, Wilming- ton & Baltimore R. Co., 1870, 7 PhUa., 461, 27 L. Int., 405, 2 Leg. Gaz., 401. It should appear of record that before making entry or tendering a bond for compensation an efibrt has been made to agree with the owner as to the compensation. The proper form is by petition setting forth the facts. Offer of bond is an assertion of effort to agree— Conclusiveness of court's approval of bond. — -Wadhams v. Lackawanna & Bloomsburg R. Co., 1862, 6 Wr., 303. The offer of a bond by a corporation to secure the obligee against damages to be done in the construction of the works is in it- self an assertion that the parties have endeavered to agree upon the proper amount of damages and have failed. And the action of a court in approv- ing the sureties upon such bond and directing it to be filed involves an ad- judication that everything necessary to entitle the company to have the bond filed has been done. Grounds of exception to bond. — ^Myers v. Delaware, Lackawanna & Western R. Co., 1885, C. P., Luzerne, 14 Luz. Leg. Reg., 247, 3 Kulp., 347, 2 Del. Co., 384. Entay will not be enjoined upon objection to the bond for damages based upon merely formal defects, e.g., the absence of a formal attest- ation of the corporate seal and president's signature, nor because no author- ity to file the bond is shown ; such authority will be presumed. The corporation's lack of authority to appropriate the property for the par- ticular purpose alleged cannot be set up by way of exception to the bond for Sufficiency of security a question for the court.- Phila. v. Wilmington & Baltimore E. Co., 1870, 7 Phila., 461, 27 L. Int., 405, 2 Leg. Gaz., 401. The sufficiency of the security offered in a bond for damages is in each case a question for the court, no directions as to the nature of the security being given by the statutes except that it shall be " adequate." What damages are covered— Location and construction.- Wadhams V. Lackawanna & Bloomsburg Railroad Co., 1862, 6 Wr., 303. A bond filed by a railroad company to secure the obligee for damages to be done in the location if the road is a security for all damages that may be done in the 12— MUEPHY. 178 EMINENT DOMAIN. [Part I. construction also ; and a bond conditioned for the payment of the former will be treated as security for the latter also, though not expressly so con- ditioned. Action on bond— Lessening quantity of land— Change of location- Evidence. —Wilmington & Reading E. Co. v. High, 1879, 8 Nor., 282. In an action of debt upon a bond given by a corporation to the plaintiff to secure the payment of damages which the plaintiff might sustain by reason of the location of the works upon his land, upon the back of which is indorsed an agreement that if from any cause the quantity of land and fencing should be changed or lessened, a stated deduction should be made from the face of the bond, evidence is admissible to show that the amount of land actually so taken was materially less than the amount named in a draft annexed to the bond, although such lessening was due to a change in the location of the works made after the execution of the bond. Foreclosure sale of land taken— Owner must proceed on bond.— Fries v. Southern Penna. Railroad & Mining Ck)., 1877, 4 Nor., 73. Where a company gives a bond to secure land damages and takes possession, and its property is subsequently sold in foreclosure, the land owner cannot proceed by scire facias against a purchaser at the foreclosure sale on a judgment for damages entered after the recordingof the mortgage. He must proceed upon the bond. 3. The BetiUon : Its Vonm and. Contents: Issue Etc. Petition must set forth inability of parties to agree— Verification— Affidavit — ^Amendment. — Reitenbaugh v. Chester Valley Railroad Co., 1853, 9 H., 100. A corporation cannot legally petition for viewers until an effort has been made to agree with the owner as to the proper compensation, unless he be beyond the reach of process or legally incapacitated to contract ; and the petition should set forth the fact that such effort has been made and has failed, with a verification of such fact by the affidavit of a person having knowledge of the facts. See also O'Hara v. Penna. E. Co., 1855, 1 C, 445; Zack e. Penna. R. Co., 1855, 1 C, 394, also Phila., Wilmington & Baltimore R. Co., V, 2, mpra. Tucker v. Erie & North Ea.st Railroad Co., 1856, 3 C, 281. An affidavit by an agent that the petitioning company was unable to agree etc. with the owner contains a necessary implication that an effort to agree was made and was unsuccessful. Pennsylvania Railroad Co. v. Porter, 1857, 5 C; 165. A petition which does not set forth the inability of the parties to agree or the absence or legal incapacity of the owners, may be amended before the view is taken. Other requisites of petition— Statem^t of nature of injuries.- Union Canal Co. v. O'Brien, 1834, 4 R., 357. A complainant pursuing a statutory remedy for injuries done to his lands by a corporation under the delegated right of eminent domain must set forth in his petition the nature of the in- jury which forms the ground of his complaint, in order that it may appear to the court whether the injury is such as the act providing the remedy con- templated. A mere statement that his lands have suffered injury is not sufficient. Same — Description of land— Names of owners. — Pennsylvania Rail- road Co. V. Porter, 1857, 5 C, 165. The land taken should be so described, either in the petition or the report, as to identify it beyond question. Reitenbaugh v. Chester Valley R. Co., 1853, 9 H., 100. The petition should set forth the names of the several persons through whose property the work is to pass and who are entitled to compensation. See also O'Hara v. Penna. R. Co., 1855, 1 C, 445: Zack v. Penna. R. Co., 1855, 1 a, 394. Signature of corporation's petition.— Tucker v. Erie & North East ^"■^ ^-^ EMINENT DOMAIN. 179 Railroad Co.. 1856, 3 C, 281. A petition of -viewers need not be signed by an oflttcer of a railroad company when it is under the corporate seal. Amendment of petition.— Pennsylvania Railroad Ck). v. Lutheran Con- gregation, 1866, 3 Sm., 445. An amendment to the petition may be granted by a court of common pleas. See also Penna. & N. Y. E. Co. v Bunnell 1876, 31 Sm., 414. Claim of larger damages in amended petition— Estoppel.— Pennsyl- vania & New York E. Co. v. Bunnell, 1876, 31 Sm., 414. A claim of a cert- ain amount of damages does not estop the plaintiff to claim a larger amount in an amended petition. Pleading— Form of issue etc.— New York, Chicago & St. Louis E. Co V. Price, 1884, 4 Penny., 200, 41 L. Int., 314. The court of common pleas has entire control of the pleading and mode of trial in cases within its juris- diction, and it is therefore not error to order a defendant railroad company to plead without a narr. having been filed. Pittsburgh & Connellsville E. Co. v. Watson, 1860, C. P., Allegheny, 2 Pitts., 82, 7 Pitts. L. J., 201. Form of issue to ascertain damages. 4. Notice. O'Hara v. Pennsylvania Railroad Co., 1855, 1 C, 445. Under the Act of March 27, 1848, where a land owner has no notice of the appointment of viewers, an objection to the preliminary proceedings and to the petition may he made after the report of the viewers is returned. Eeitenbaugh «). Chester Valley E. Co., 1853, 9H., 100. Each owner must be given the proper notice of the meeting of the viewers to be held upon his premises ; and the evidence of such notice must be filed with the viewers and returned with their report. Zack V. Pennsylvania Railroad Co., 1855, 1 C, 394. Under the Act of March 27, 1848, it is not necessary that the owner of the land taken should have notice of the presentation of the petijiion and the appointment of viewers. Still, 1874, C. P., Chester, 2 Chester Co., 233. The jury may be appointed without notice to the opposite side. McCurdy v. Chestnut Hill R. Co., 1880, C. P., 8 W. N. C, 143. Where the corporation responds to the petition that a party other than the petitioner claims title, the company will be ordered to give notice to such adverse claimant of the appoinment of the jury and to appear before it and maintain bis claim. 5, The Jteport cvnd Award: Worm and Contents Etc, Statement of items of damage and value etc. — Tucker v. Erie & North East Railroad Co., 1856, 3 C, 281. The report need not state in detail how the damages accrued. Lodge V. Railroad Co., 1872, 3 L. Gaz., 97, 9 Phila., 543, 29 L. Int., 204. The jury need not return an itemized verdict. But see Harvey u. Lacka- wanna & Bloomsburg R. Co., 11 Wr., 437. Philadelphia, Wilmington &c. Railroad Co. v. Trimble, 1838, 4 Wh., 47. The return need not contain a valuation of the land occupied or ot the ma^ terials taken for the construction, nor a separate statement of the damages allowed for other injuries, nor a statement of the quantity of land taken or a description of the same. If the jury allow damages for an injury which is not legally a subject of its inquiry, the return will be set aside. Poffenberger v. Susquehanna R. Co., 1854, C. P., Dauphin, 1 Pear., 45. The value of the land must be found ; a report cont^ning a lumping charge of all the injury done will beset aside. 180 EMINENT DOMAIN. [^PaH I. Henry v. Reading & Columbia R. Co., 1872, C. P., Lancaster, 3 Lane. B., No. 52. A report which merely awards a certain amount of money as dam- ages to the petitioner will be set aside. Shirk V. Penna. R. Co., 1878, C. P., Lancaster, 9 Lane. B., 198. The view- ers may find separately the value of the land taken and the various items of damage, and report the sum total as the amount due the petitioner. Keen v. Penna. B. Co., 1877, C. P., Lancaster, 9 Lane. B., 103. Although the viewer^ should report separately the value of the land and the items of damage their failure to separate these elements of the award is not a suffi- cient ground for setting the report aside. Same — Joint ownership. — Pittsburgh & Steubenville Railroad Co. v. Hall, 1855, 1 C, 336. The assessment of damages upon the petition of sev- eral joint owners of a tract is properly made in a gross sum. Same— Tenancy.— Getz v. Phila. & Reading R. Co., 1884, 9 Out., 547. In a proceeding for damages in which the owner and his tenant unite the jury may assess the gross amount of damage and then the amount to which each of the parties is entitled. Same— Different properties and owners— Signature. — Tucker d. Erie & North East Railroad Co., 1856, 3 C, 281. "Where a report embraces sev- eral distinct properties owned by different persons, each finding need not be separately signed by the jurors. Alternative awards. — Baker v. Phila., Norristown & Phoenixville R. Co.. 1883, C. P., Montgomery, 1 Montgom. Co., 47. The viewers must award a definite amount of damages. They cannot make alternative awards, and cast upon the court the burden of deciding upon which of them judgment shall be entered. The viewers are in the first instance the sole judges of both the law and the facts. Inaccurately designated damages.— Non-renewal of lease.— North Pennsylvania Railroad Co. v. Davis, 1856,2 C, 238. The interest which a tenant for years holds under a covenant for the renewal of a lease is a pro- per subject of compensation. The fact that the viewers in their report designate such compensation as " damages for the non-renewal of the lease'' does not vitiate the award. Statement of advantages and disadvantages. — Ohio & Pennsylvania Railroad Co. v. Wallace, 1850, 2 H., 245. Where an act of Assembly re- quires that the report shall ' ' set forth * * * the amount of benefit con- ferred " the report must state the advantages specifically. A statement that the jury has taken into consideration the advantages and disadvantages is not sufficient. Phila. & Erie E. Co. v. Cake, 1880, 14 Nor., 139. The omission of the viewers to state in their report that they made any just allowance for the advantage which may have resulted or seemed likely to result to the land- owner by the construction of the works, or made any fair and just comparison of the advantages and disadvantages, is fatal. Reitenbaugh v. Chester Valley R. Co., 1853, 9 H., 100. It is not necessary that the advantages and disadvantages be set forth in detail, but the fact that there has been a comparison of them should be certified. See also O'Hara v. Pennsylvania Railroad Co., 1855, 1 C, 445 ; Zack v. Pennsylva- nia Railroad Co., 1855, 1 C, 394. Quantity and value of property taken. — Reitenbaugh v. Chester Val- ley R. Co., 1853, 9 H., 100. It should appear upon the face of the report what the quantity, quality and value of the land and materials taken are. See also O'Hara v. Penna. E. Co., 1855, 1 C, 445; Zack v. Penna. R. Co., 1855, 1 C, 394. Pennsylvania Railroad Co. v. Bruner, 1867, 5 Sm., 318. In a proceeding to assess damages under the Act of March 27, 1848, a report setting out the data from which the contents of the tract may be calculated is a sufficient statement of the contents. Stating the land to be in a cei-tain town and used for lumber yards etc. is a sufficient statement of the quality of the land. Part Z] KMINEUT DOMAIN. 181 Presence of parties— Witness.— Pennsylvania Railroad Co. v. Porter, 1857, 5 C, 165. The report need not show affirmatively the presence of the parties at the time the view was taken, or that witnesses were regularly called and sworn. 6. Review of the Proceedings: Setting Report aside : Appeal Etc. See also 5, supra. Constitutionality of grant of right to appeal— Act of June 13, 1874. — McGranu v. Penna. R. C!o., 1883, C. P., Lancaster, 14 Lane. B., 139. An act of Assembly giving a right of appeal from an assessment of damages for land taken by a corporation under the right of eminent domain, no such right having existed under the company's charter, is not unconstitutional in the case of a corporation chartered previously to the passage of such act and the adoption of the Constitutional provision which the act effectuates, not- withstanding that such corporation may not have accepted the provisions of the new Constitution. Long's Appeal, 1878, 6 Nor., 114. A subsequent legislative grant of a right of appeal from the assessment of damages for land taken by a corpora- tion to which has been delegated by its charter the right of eminent domain does not impair the charter contract, and is constitutional. The Act of June 13, 1874, giving an appeal to either party from the assess- ment of damages, may be constitutionally invoked by or against a company previously chartered under laws providing no right of appeal and which has not accepted the provisions of the new Constitution. The Act of 1874 merely provides a change in the remedy and does not impair the franchise : revers- ing 9 Lane. B., 98. Appeal by devisees of deceased owner— Administrator.— McCay v. Baltimore & Philadelphia R. Co., 1885, C. P., Delaware, 2 Chest. Co., 558, 2 Del. Co., 419. The devisees or distributees of the estate of a deceased owner are entitled to appeal from the award. Such an appeal will be sus- tained although not made in the name of the administrator, but the court will direct an issue to be framed between the latter and the company ; and will also order the appellants to give their bond to the administrator to secure the estate from the costs of the appeal. Certiorari— Regularity of proceedings— Waiver by appeal.-^chuler V. Northern Liberties &c. Railroad Co., 1838, 3 Wh., 555. The proceedings for an assessment of damages for land taken by a railroad company for the construction of the road may be removed to the Supreme Court by certiorari. Delaware, Lackawanna & "Western R. Co. v. Burson, 1869, 11 Sm., 369. The regularity of initiatory proceedings must be brought up for review on certiorari; they are waived by an appeal. Appeal exclusive remedy for excessive award. — Seal v. Northern Lib- erties R. Co., 1856, C. P., Dauphin, 1 Pear., 108. The only remedy for an assessment of excessive or insufficient damages is by appeal. Roberts?). Central Passenger Rwy. Co., 1868, C. P., 1 Brewst., 538. The remedy for an excessive award is by appeal. Exceptions to excessiveness will be dismissed. Time of entering appeal. — Gwinner v. Lehigh & Delaware Gap Railroad Co 1867 5 Sm., 126. The Act of April 27, 1855, relating to appeals from the assessment of damages, is repealed by the Act of April 9, 1856. Under the latter the appeal must be entered withm thirty days after the report is filed. Seal V Northern Central R. Co., 1856, C. P., Dauphin, 1 Pear., 108. The appeal may be taken within thirty days of final confirmation. Same— Appeal after judgment on award.— Penna. R. Co. v. Gorsuch, 1877, 3 Nor. , 411. An appeal entered after judgment upon the award is void. 182 EMINENT DOMAIN. [Part I. Such a judgment is a final adjudication of the controversy until set aside or reversed by writ of error. Form of appeal. — Seal v. Northern Central E. Co., 1856, C. P., Dauphin, 1 Pear., 108. The appeal should be in the same form as an appeal from an award of arbitrators. Security on appeal. — SlingluflF v. "Wissahickon Turnpike Co., 1852, 1 Phila. , 379. Upon an appeal from an award of damages, in a case in which the act incorporating the company makes no provision as to the amount of security to be entered by the company, the amount may be fixed by the court. Costs — ^Recognizance — ^Form of affidavit. — Deisher v. Reading & Potts- ville E. Co., 1886, C. P., Schuylkill, 2 C. C. R., 606. Upon an appeal from the report all costs accrued must be paid, a recognizance entered into and an affidavit made that the appeal is not for the purpose of delay but because the appellant firmly believes injustice has been done. An affidavit that avers merely that the appellant " firmly believes that injustice has been done " is not sufficient. Chntra: Perry v. Penna. Schuylkill Valley E. Co., 1887, C. P., Montgom- ery, 3 C. C. E., 59. Inadequacy of excessiveness of award will not be inquired of.— Willing V. Philadelphia, Wilmington & Baltimore Eailroad Co., 1840, 5 Wh., 460. Upon certiorari to bring up thfe proceedings of a jury appointed to assess damages occasioned by the construction, the question of the inade- quacy or excessiveness of the damages cannot be heard. See also Allison v. Delaware & Schuylkill Canal Co., 1840, 5 Wh., 482; Penna. E. Co. v. Bruner, 1867, 5 Sm., 318. The evidence is not before the court.— Union Canal Co. v. Reiser, 1852, 7 H., 134. Upon a certiorari to bring up the proceedings the evidence is not before the court. The regularity of the proceedings alone is examinable. See also Ohio & Pennsylvania Eailroad Co. ». Bradford, 1852, 7 H., 363; Winebiddle v. Penna. E. Co., 1852, 2 Gr., 32 ; Mifflin v. Penna. E. Co., 1870, 2 Leg. Gaz., 222. Inquiry into petitioner's title.— Connecting Eailroad, 1869, C. P., 2 Leg. Gaz., 3. A company will not be permitted to file nunc pro tunc, after the jury has made its report, an answer denying the title of the petitioner to the land in question. Directors of The Poor v. Eailroad Co., 1844, 7 W. & S., 236. In proceed- ings by inquest to recover damages to land for an injury done by the location and construction of a corporate work through it, theplaintiiTstitleisasubject of inquiry before the jury : and upon exceptions to the inquisition it will be presumed, in the absence of proof to the contrary, that the title claimed was satisfactorily proven. Winebiddle v. Penna. E. Co., 1852, 2 Gr., 32. The Supreme Court will not review the action of viewers in deciding that one claiming damages as owner of the apjiropriated land under the statute of limitations had not been in possession for twenty-one years. The viewers may pass upon questions of title so far as to determine who are entitled to damages. Church V. Northern Central Eailway Co., 1863, 9 Wr., 339. An objection as to the j«a»tem of title in the petitioner must be made at the time of the application for viewers or on appeal from their report. The question cannot be examined on certiorari. See also Turner's Petition, 1870, 2 Leg. Gaz., 148. Improper interference with jury.— North Pennsylvania Eailroad Co. V. Davis, 1856, 2 C, 238. The decision of the court below upon an excen- tion to the report of the viewers for a party's improper interference with the jury, is not reviewable upon certiorari. Remittitur of excessive damages— Discharge of rule for new trial.— Po^rt /.] EMINENT DOMAIN. 183 Shaw ». Penna. E. Co., 1885, C. P., 42 L. Int., 15. Wherein the trial of an appeal from an award excessive damages have been given, a rule for a new trial will be discharged upon the plaintiff's filing of record a remittitur of all sums above the proper amount. See, as to a second excessive verdict, Watson v. R. Co. , infra. Entry pending appeal. — Levering v. Philadelphia, Germantown & Nor- ristown Railroad Co., 1844, 8 W. & S., 459. After the report of viewers ap- pointed under the provisions of the charter of a corporation to assess the damages for land taken for the construction of its works, and a tender of the amount awarded, the company may enter upon the land and construct the works during the pendency of an appeal from the award. Re-committing report for correction. — Pennsylvania RaUroad Co.'s Appeal, 1877, 34 L. Int., 195, 1 Chest. Co., 28. A report may be recom- mitted for the correction of clerical errors. Poffenberger v. Susquehanna E. Co., 1854, C. P., Dauphin, 1 Pear., 45. The court will not refer back a report for correction where it appears to have been made unfairly and with partiality. Where plan does not cle^ly show what is appropriated— Ordering new view. — Mifflin v. Penna. R. Co., 1870, 2 Leg. Gaz.,222. Where a plan of the land taken, produced by the corporation, does not clearly show whether the company has appropriated all of a certain tract under the right of eminent domain or intends to so appropriate a part and to continue to use the remainder under a lease thereof which it holds, the court may properly direct a new view and order the company to elect. Award of excessive damages. — ^Phila. & Erie R. Co. v. Cake, 1880, 14 Nor., 139. When the damages are grossly excessive it is the duty of the court below to set aside the report of the viewers. See also Arthvtr v. Penna. R. Co., 1870, C. P., Montgomery, 27 L. Int., 237. Second excessive award. — ^Watson ii. R. Co., 1881, C. P., 38 L. Int., 138. Upon a second excessive verdict the court will not peremptorily grant a new trial, but will give the plaintiff an opportunity to file a remittitur of the excess. Furnishing conveyance to viewers. — Shirk u Penna R. Co., 1878, C. P., Lancaster, 9 Lane. B., 198. The furnishing of means of conveyance by the petitioner to some of the viewers is not a sufficient ground for setting aside the report. Exceptions— Failure to file in time— Notice of filing report.— Cotter V. Sunbury & Erie R. Co., 1858, 15 L. Int., 180. Exceptions to the report not filed within the time limited by law will be disregarded, although the plaintiff have no notice of the filing of the report. They are not entitled to such notice. Rule to set aside— Lack of authority to apply for,— Brown v. Manu- facturing Co., 1850, D. C, 1 Phila., 73, 7 L. Int., 110. A rule to show cause why an inquest of damages should not be set aside and judgment opened will be discharged where it appears that the counsel who assumes to appear on behalf of the corporation asking for the rule was retained by only a few of the stockholders. 7. Miscellaneous, Awardby fiveof six viewers.— Baltimore Turnpike, 1813, 5 Binn., 480. Where the act of Assembly incorporating a company provided that six viewers might be appointed to adjudge the damages for land taken in the construc- tion of the corporate works, held that where the whole number viewed five might adjudge the damages. Orderingview— Struck jury.— New York, Chicago & St. Louis R. Co. v. Price 1884 4 Penny., 200. The court is not bound to direct the jury to go 184 EMINENT DOMAIN. [Part 1. npon the premises upon the mere application of one party and against the objection of the other. The proper practice is to obtain the view by means of a stmckjury. Stay of execution upon judgment for damages. — Harrisburg & Po- tomac R. Ck). V. Peffer, 1877, 3 Nor., 295. A corporation is not entitled to a stay of execution uiider the Act of June 16, 1836, Sec. 3, upon a judgment for damages for land taken under the power of eminent domain. Evidence of corporation's title. — Davis v. Titusville & Oil City E. Co., 1887, 44 L. Int., 93. The record of the deeds by which a company through a judicial sale of the property and franchises of another company obtained from the purchasers thereat its right of way, are admissible in evidence, without production of the originals, in a proceeding for the assessment of damages. Such deeds are within the Kecording Acts. VI. Ttie Title Acquired. When title passes to the corporation.— Philadelphia & Reading E. Co. V. Lawrence, 1873, C. P., Schuylkill, 1 Leg. Chron. E., 401. Right of way vests in the company immediately upon entry and payment of, or providing security for damages. See also Beale v. Penna. E. Co., 1878, 5 Nor., 509. Same— Mortgage by corporation afber entry and before judgment for damages. — Borough of Easton's Appeal, 1864, 11 Wr., 255. Where a corporation created for the prosecution of a public work enters, under the State's delegated right of eminent domain, upon land of a private owner, for the purpose of using the same in the prosecution of such work, title does not pass to the corporation until compensation is made or adequate security therefor given ; but a, mortgage by such a corporation of its property and franchises, given after such entry and before judgment for damages, binds the corporation's interest acquired by such entry, subject to payment ot the judgment. When corporation does not acquire fee. — Pittsburgh & Lake Erie R. Co. V. Bruce, 1882, 6 Out., 23. A corporation with the power of eminent domain which by its charter is empowered merely to " enter upon, take pos- session of and use ' ' such lands as may be necessary for the construction of its works does not acquire by such taking a fee in the land. A fortiori is this so where the charter makes no provision for damages for the taking of the fee, but merely for such damages as are sustained by the construction of the works. Spear ». Allison, 1852,8H., 200. A canal company has no title, butmerely an easement in land over which a canal was constructed and afterward aban- doned, but for which damages were assessed and paid. Eelease of damages does not convey title.— Groh v. Eckert, 1869, 3 Brewst., 116. A release to a corporation of all claim for damages to the re- leasor's land by the company's construction of its works through, or occu- pation of it, does not convey any title to the land. Hemer v. Penna. Schuylkill Valley R. Co. , 1884, C. P. , Chester, 1 C. C. R. , 43. Viewers will be appointed although the petitioner has executed arelease of dam- ages where there is a dispute as to whether the release covered the damages in question. The effect of the agreement is for the viewers, subject to ap- peal. See also Pulmer v. Bangor & Portland R. Co., 1882, C. P., Northampton, 1 C. C. R., 46, 2 Del. Co., 427; Updegrove v. Schuylkill Valley E. Co., 1887, C. P., Chester, 3 C. C. E., 74. Entry without legal proceedings, without objection by owner— Sub- sequent assessment and release of damages— Title derived from orig- mal appropriation.— Lawrence's Appeal, 1875, 28 Sm., 365. Where a corporation constructs its works vdthout legal proceedings to appropriate Part J.] EMINENT DOMAIN. 185 and make compensation for the land on which they are located, and without objection by the owner, and afterward proceedings to assess damages arc- commenced but subsequently compromised and damages released, the title of the company is derived from its original entry and appropriation without objection. The release does not operate as an original conveyance but merely as a discharge of the damages.- affirming 31 L. Int., 79. Reversion to owner when use ceases.— Jessup v. Loucks, 1867, 5 Sm., 350. When private property is taken for public use by a corporation invested' with the right of eminent domain, if that use ceases, it returns or reverts to the owner of the soil from whom it was taken. Same— Land taken by State for Public Works— Abandonment.— Haldeman«. Pennsylvania Railroad, 1865, 14Wr., 425. Land taken by the State for the State Works vested in the Commonwealth in fe^, and upon abandonment of the Works did not revert to the owners. See also Craig t. Allegheny, 1866, 3 Sm., 477; Robinson v. West Penna. E. Co., 1872, 22 Sm., 316; Wyoming Coal Co. v. Price, 1876, 31 Sm., 156. Penna. Canal Co. v. Harris, 1882, 12 W. N. C, 432. Land taken by the Commonwealth for canal puirposes passed in fee to the Commonwealth's vendee. Same — Reservation in grant. — ^Robinson v. West Pennsylvania E. Co., 1872, 22 Sm. , 316. Where an owner conveyed land to the Commonwealth for the construction of the Public Works, excepting therefrom the land which should be used for a particular part of the Works, and the Commonwealth used a part of the owner's land for such purpose, held that the exception did not subject the land to the specified servitude and entitle the holder to its reversion upon its abandonment for that purpose, but that the Common- wealth's interest in the excepted portion, as well as in the rest, was an abso- lute estate in perpetuity, and could not be defeated by the owner's neglect or refusal to make the application for an assessment of damages to which he was entitled. Same — ^Abandonment of use — Land opened to other appropria- tion. — Schuylkill Navigation Co. v. Pottsville & Mahanoy E. Co., 1884, C. P., Schuylkill, 41 L. Int., 264. Land of a corporation which it has aban- doned for its corporate purposes may be appropriated under the right of eminent domain by another corporation for the corporate purposes of the latter. Determining the question of a corporation's abandonment of its location, in a contest between it and another corporation seeking to appropriate the same property for the corporate purposes of the latter, is not forfeiting the franchises of a corporation in a collateral proceeding. Same — ^Reasonable time allowed for adaptation to use. — Ross v. Penna. E. Co., 1885, C. P., 42 L. Int., 16. A corporation which takes land under ite power of eminent domain will not be held to have misapplied the land because it does not at once adapt it to, and employ it in the operation of its works. It is entitled to a reasonable time within which to make such adaptation. Same — ^When land does not revert. — Union Canal Co. v. Young, 1836, 1 Wh. 410. Land conveyed, upon sufficient consideration, to a corporation in the mere expectation that the proposed work wiU be located upon it is not held in base fee, to revert to the grantor upon the abandonment of the projected work. iEztent of grant without specification of boundaries.— Goddard v. Philadelphia &.Baltimore Central R. Co., 1885, C. P., Delaware, 2 Lane. Law. Rev., 265, 2 Del. Co., 337. In the absence of a grant by deed or of the record of proceedings in condemnation, the right of way of a corporation under a grant of the same without the specification of boundaries will be confined to the land actually taken and occupied by the company. 186 EMPLOYEES AND SEKVAXTS OF CORPOHATIONS — EEROR. [Part J. EMPLOYEES AND SERVANTS OF CORPORA- TIONS. Powers and liabilUies of, in general, see Agency. Negligence. Quo warranto against, see Quo Warranto. Limiting pay of, iy resolution of directors, see Contract, VI. Witness fees of, see Costs. ENLISTMENT. In army or navy, as ground for forfeiting membership in corporation, see Dis- franchisement. ENTRY. In books, see Evidence. Upon land, under right of eminent domain, see Eminent Domain. EfiUITY. See Contribution, Discovery, Foreign Corporations, Forfeiture, Fraud, Injunction, Insolvency, Jurisdiction, Laches, Mistake, Mortgage, Notice, Subrogation, Trusts and Trustees. Wlien, in general, bills in equity lie, see Action and Suit. Evidence, execution, practice, pleading, see those heads. Equitable liability of directors and stockholders, creditors' and stockliolders' biUs, see Directors, Stock and Stockholders. Questioning powers of corporation by bill in equity under Act of June 19, 1871, see Charter, IV, 2. Bill to apportion ground rent, see Eminent Domain. ERROR. In admission or rejection of evidence, see Evidence. In reports of corporate officers, see Mistake. In making premature call for instalments of stock, see Stock and Stockholders. See Mistake. Part I J EEEOR — ESTOPPEL. 187 Savings Institution r. Smith, 1847, 7 B., 291. A corporation may have a writ of error without bail, but it is not a supersedeas. Academy of Fine Arts r. Power, 1850, 2 H., 442. In the case of a writ of error by a corporation the required affidavit may be made by an agent of the corporation who is neither specially deputed for the purpose nor is its presi- dent or chief officer. Overseers of Roxborough v. Bunn, 1824, 12 S. & E., 291. After pleading to a declaratiou charging the defendants as a corporation, and going to trial as such, a corporation cannot, on a writ of error, take advantage of the action having been commenced against them< before a justice in their individual characters. ESCHEAX. Comm. V. New York, Lake Erie & Western E. Co., 1887, 19 W. N. C, 1, 44, L. Int., 178. A foreign corporation cannot purchase the charter of a Pennsylvania corporation through the intervention of an individual agent secretly acting on behalf of such foreign corporation and thereby obtain the control and practical ownership of lands in Pennsylvania which it is not au- thorized to hold directly ; and such lands are subject to escheat although the legal title to them is held by the Pennsylvania corporation. ESTOPPEL. Estoppel from denying subscription for stock, or the validity of such subscription, see Subscription. As to constructive notice, see Notice. See also Acceptance and Assent. Assent to transfer of entire stock. — Insurance Bank v. Bank of The United States, 1847, D. C, 4 dark, 125, 7 P. L. J., 129. Where the stock- holders of a corporation, or those about to become stockholders, agree to transfer the entire stock, the fact that the transfers were actually made does not in itself constitute such an adoption of the act by the corporation as will make the contract binding upon it, since it would have no right to refuse to permit the transfer. Making repairs subsequently to abandonment of corporate works.— Fredericks v. Penna. Canal Co., 1883, C. P., Lycoming, 40 L. Int., 24, 16 Phila., 605, 33 Pitts. L. J., 117. A corporation which has lawfully aban- doned'its works cannot be held liable for damages resulting from the non- repair of the latter by reason of having made certain repairs subsequently to such abandonment ; it cannot either assume the control or incur the liabili- ties which existed before abandonment. Affirmed: 13 Outer., 50. Injunction by stockholder to restrain execution against corpora- tion. — Gravenstine's Appeal, 1865, 13 Wr., 310. It seerns that a stockholder may have an injunction for the protection of the corporation against execu- tion where the directors have acted ultra vires or where they have been guilty of fraud or collision with any of the company's creditors by which its other creditors or stockholders would be defrauded. But a consenting stockholder cannot so interfere when the debt has been created with the assent of all the stockholders as well as the directors and judgment confessed for it by the same authority. 188 ESTOPPEL. IPart I. Misnomer of defendant corporation. — ^Kroberger v. Citizens' Bank, C. p., 1875, 2 W. N. C, 80. A corporation which has held itself out as of a certain name and contracted under such name cannot take advantage in an affidavit of defence of the fact that such name appears as the name of the de- fendant in the writ served upon it, although its proper name is, although similar to that used in the writ, different. Act of officer — ^Alienation. — ^Junction Railroad Co. v. Pennsylvania Rail- road Co., 1875, 3 W. N. C, 277. The chief officer of a corporation has no power to make any contract involving the aliening of any of the corpora- tion's property or franchises. The corporation cannot be equitably estopped by such an act. Denial of corporate existence — ^Payment of bonus. — Comm. v. Pitts- burgh Forge & Iron Co., 1870, C. P., Dauphin, 2 Pear., 374. It seems that the State is not estopped from denyingthe existence of a corporation under a par- ticular act of Affiembly by reason of the corporation's having paid, as it sup- posed under such act, a bonus into the State treasury. Irregularity in incorporation — ^Waiver by Commonwealth. — Comm. r. Westchester Railroad Co., 1855, 3 Gr., 200. No form of words is necessary to create a corporation ; it may be created by implication from the grant of corporate powers and privileges by statutes subsequent to an original incorp- oration which may not have been technically valid. In such case the Com- monwealth, if not technically estopped from denying or forfeiting the corp- orate existence claimed, will be held to have waived by such subsequent re- cognition any irregularity in the original incorporation. Bepeal of charter. — Erie & Northeast Railroad Co. v. Casey, 1856, 2 C, 287. A Legislature cannot be estopped from repealing a charter, in accord- ance with an express reservation of the right, for an abuse of the corporate franchises, by the fact that after such violation it passed an act amounting to a legislative recognition of the corporation's existence. Nor is the Legisla- ture disarmed of its right to repeal by the fact that the acts complained of as abuse or misuse have been enjoined in judicial proceedings instituted by the Commonwealth against the corporation ; nor do such judicial proceedings imply a new contract by which the State promises not to repeal the charter for any past offence, or a waiver of the right to repeal. Under such a reser- vation the right may be exercised for an abuse which has ceased to exist be- fore the time of repeal. Contract with corporation — Defect in charter. — ^Dyer v. Walker, 1861, 4 Wr., 157. A party who has contracted for the use of a turnpike road is estopped from setting up a defect in the charter of the company. Same— Failure to record charter.— West Harrisburg Building Associa- tion V. Morganthal, 1878, C. P., Dauphin, 2 Pear., 343. Failure to record a charter in the office for recording deeds does not render it void. Such an irregularity cannot be taken advantage of by a member of the corporation in a suit by the latter against such member to recover money borrowed by him. Transfer of securities to corporation, to be reported as assets.— Comm. V. Manufacturers' Ins. Co., 1875, C. P., Dauphin, 11 Phila., 550, 32 L. Int., 92. An alleged stockholder in a corporation who has transferred to the latter valuable securities in order that they may be reported as a part of its assets will be estopped from claiming that such transfer was not bona fide or from taking advantage of any informalities in the organization of the company. Member's assent to ultra vires act. — Grand Lodge of United Workmen V. Stepp, 1883, 3 Penny., 45. Assent by a member of a corporation to an vJtra vires act of the corporation does not validate such an act or estop him from taking advantage of its invalidity. Member's right to inauire into validity of election— Concurrence etc.— Miller v. McCutchen, 1851, C. P., 2 Parsons, 205, A corporator who Part Z] ESTOPPEL. 189 does not know, and has no means of knowing at the time when a corporate election takes place, that one who is elected is incompetent to exercise the office under the charter, will not be deemed to have concurred in it so as to preclude him from being a relator in a quo warranto information. A party becoming a corporator subsequently to an election is not disqualified from inquiring into the right by which officers, illegally chosen at such election, hold their office. Dealings with stock by owner's agent.— Larkin's Appeal, 1861, 2 "Wr., 457. Where a feme sole holds stock in a corporation in the name of a trust- ee, in accordance with the by-laws, discharging her liabilities as a corporator from time to time, through a third person as an agent, and such agent bor- rows money from the corporation upon the stock as his own, and gives n mortgage therefor which finally is satisfied by his pretended surrender ol the stock, the corporation is liable to the feme sole for the value of the stock. She is not estopped by the silence of her trustee in permitting the agent's name to be called instead of his own for payment of dues. Division of stock — Suit forpro rata— Denial of validity of act.— Cole- man V. Columbia Oil Co., 1865, 1 Sm., 74. Where a corporation purchases a block of its own stock, and afterward, by resolution, divides the stock among the then stockholders jjro rata, upon the basis of the shares then held by them respectively, a holder cannot, in a suit brought by him against the company to enforce a claim to a pro rata upon the basis of the number of shares held by him at the time of the purchase, deny that the purchase in question was an exercise of a corporate franchise or was justifiable upon any principle of necessity ; if such a stockholder meant to disaffirm the purchase, he should have done so by injunction to restrain it ; by bringing such an action he affirms it, and as to him it is a valid corporate act. Agreement for division of bequeathed stock— Kefusal of corpora- tion to permit transfer on ground of indebtedness.— Presbyterian Con- gregation V. Carlisle Bank, 1847, 5 B. , 345. Where a testator has bequeathed forty shares of bank stock to four persons in equal shares, and the bank has permitted a transfer by three of the legatees of thirty of the shares, it cannot afterward, upon the attainment of majority by the fourth legatee, refuse to permit a transfer by him of the remaining ten shares on the ground of the indebtedness to the bank of two of the three other legatees. The permission of the bank that three-fourths of the stock should be so assigned was an as- sent by it to the severance of the title of the fourth legatee and notice that the remaining shares were his sole property. In an action against the bank for a retusal to permit such transfer it is error to reject evidence of an agreement between the legatees and the execu- tor that the stock should be divided, the thirty shares so transferred and the remaining teu retained for the fourth legatee until majority. Pasrment of assessment by transferee of stock.— Franks Oil Co. v. McCleary, 1869, 13 Sm., 317. In the absence of a special provision in the charter or in the certificates, a transferee of stock from an original subscriber is not personally liable for unpaid assessments called. Nor is he estopped from denying his liability by the voluntary payment of one of such as- sessments. No such liability is imposed by the Act of July 18, 1863, relat- ing to mining companies. See also Pittsburgh Coal Co. v. Otterson, 1877, 4 W. N. C, 545. Omissions in ordering assessment.— Partial payment on,— Hays v. Pittsbgh. & Steubenville Railroad Co. , 1860, 2 Wr. , 81. Where the treasurer's notices fix the amount of a call for an instalment and specify the time and place for paying the same, the omission of such particulars from the resolu- tions of the directors, ordering the call, is immaterial. A partial payment upon a call recognizes its sufficiency and estops the person making it from denying such sufficiency. Stockholder's bill for correction of discoverable mistakes in ap- proved reports of ofS,cers. — Mutual Building & Loan Assn's Appeal, 1886, 190 ESTOPPEL — EVIDENCE. [Part I. 33 Pitts. L. J., 324. An ordinary stockholder is not precluded from main- taining a bill against his corporation for the correction of mistakes of fact affecting his interests as a corporator by reason of the fact that such mistakes were discoverable errors of computation in the quarterly and annual reports of the officers, which were read, audited and approved at the stockholders' meetings. Land damages — ^Amended petition — ^Previous claim of smaller sum. — Penna. & New York R. Co. v. Bunnell, 1876, 31 Sm., 414. A claim of a certain amount of damages for injuries inflicted by a corporation's entry on land under the right of eminent domain does not estop the claimant to claim a larger amount in an amended petition. EVIDENCE. I. WHAT FACTS NEED OR NEED NOT BE PROVED : JUDICIAL NOTICE ETC. II. BURDEN OF PROOF, PRESUMPTIONS ETC. III. PROOF IN GENERAL : RELEVANCY : WRITTEN AND ORAL EVIDENCE: PRIMARY AND SECONDARY EVIDENCE : VARIA- TION OF DOCUMENTARY BY ORAL EVIDENCE ETC. IV. COMPETENCY OF WITNESSES. V. MISCELLANEOUS : PRACTICE ETC. Might of corporation, to demand evidence of trustee's auihoritg to transfer stock, see Stock and Stockholders, Trusts. Conclusiveness of sheriff's return, see Service, Foreign Corporations. Evidence as to damage, value, title etc. in proceedings to assess damages for land taken under tlte right of eminent domain, see Eminent Domain. I. "Wliat Facts Bleed or Bleed not be Proved : Judi- cial Xotlce Etc. Judicial notice of incorporation.— Mitcheson ». Harlan, 1859, C. P., 3 Phila., 385, 16 L. Int., 148. Courts will take judicial notice of the exi.st- ence of a corporation although the letters patent have been issued after suit brought. ■ First National Bank of Clarion v. Gruber. 1878, 6 Nor., 468. A court will not take judicial notice of the provision of a bank's charter unless it be pleaded and proven. Rheem v. Naugatuck Wheel Co., 1859, 9 C, 358. In a suit by a corpora- tion the plaintiff is not bound to prove its incorporation where the plea is the general issue. Want of incorporation must be pleaded in abatement, or in bar specially. See also Fuller v. Eaton, 1880, 38 L. Int., 278: Fritz v. The Commissioners, 1851, 5 H., 130. ' Accceptance of bill by corporate officer— Rule of court.— Batt v. Pennsylvania Globe Gas Light Co., 1886, C. P., 43 L. Int., 86. An accept- -^"'■' -'■] EVIDENCE. 19X ance by the treasurer of a corporation in his .official capacity is within a rule "^ f°"'J P''T'^'°g tlia* "» any action upon a bill it shall not be necessary for a plaintifif who has filed a copy etc. to prove on the trial the a«!eptance unless the defendant by affidavit etc. has denied the latter. The plaintiff is not bound to prove the treasurer's authority to accept unless the defendant has by affidavit denied it. Statute authorimng guaranty of bonds.— Timlow v. Phila. & Reading K. Co., 18S2, i2 L. Int., 280. An act of Assembly which does no more than authorize one private corporation to guarantee the bonds of another is a priv- ate act, of which the court wUl not take judicial notice upon the hearing of a rule for judgment for want of a sufficient affidavit of defence. By-law— Proof of enactment.— Comm. v. Woelper, 1817, 3 S. &E., 2s. Where there is nothing on the minutes of a meeting at which a by-law was passed to induce suspicion that it was not regular, such by-law may be given in evidence, in a dispute between members, without previous proof of its due enactment according to the charter. Corporate seal.— Leazure v. HlUegass, 1821, 7 S. & E., 313. To malce the deed of a corporation evidence, it must be provied that the seal appended is the seal of the corporation. Turnpike Co. v. McCulloch, 1856, 13 L. Int., 93. The seal of an instru- ment upon which suit is brought against a corporation must be proved to be the seal of the corporation. Grossman v. Hilltown Turnpike Co. , 1857, 3 Gr., 225. In an action of cov- enant against a corporation the seal upon the instrument on which suit is brought must be proved to be the seal of the corporation. A corporation may adopt the seal of another, or an ink impression, but such adoption must be proved. To this it is not necessary to show a resolution of the directors. Whether or not ihe seal is that of the defendant corporation is a question for the jury. Authorization of affixing of seal.— Quicksall v. Railroad, 1862, D. C, 4 Leg. & Ins. Rep., 107. In an action against a corporation on an instru- ment under the corporate seal, attested by the president and secretary, it is not necessary for the plaintiflfto show that the board of directors authorized its execution. Berks & Dauphin Turnpike Co. v. Myers, 1820, 6 S. & R., 10. The aflSxing to a contract of the corporate seal, which is a purely ministerial act, may be done by a number of managers less than the minimum who, under the chart- er, may enter into the contract ; the seal itself is prima fade evidence that the contract has been duly entered into by the corporation, unless the au- thority to affix it is confined by the charter to a particular officer or meinber, and where there is no such restriction, the question of its authorization is for thejury. IVaudulent rejection of corporator's vote— Record of suit for,— Weckerley v. Lutheran Congtegation, 3 R., 172. In an action against a corp- oration by the judge of a corporation election to recover, ux)on an alleged promise of indemnity, the amount of damages and costs recovered against him by a corporator for having fraudulently and maliciously refused to re- ceive his vote, the record of a suit brought against the plaintiff by such corporator is conclusive evidence as to the fraudulent and malicious rejec- tion. 192 EVIDENCE. [Part I. II. Burden of Proof, Presumptions Etc. See also I. As to presumption of acceptance of charter or amendment thereof, or of provisions of statutes by corporation, see Acceptance and Assent, I: of assent of corporators to corporate acts, see Id., II: of corporation's solvency, see Bankruptcy. Burden of proving stock distribution to be a dividend — Taxation.— ■NYestern Union Telegraph Co.'s Appeal, 1884, C. P., Dauphin, 41 L. Int., 194. Where an increase of stock has been distributed pro rata among the stockholders without any declaration on the part of the corporation that such a distribution is a dividend, the burden of proving the distribution to be a dividend lies upon the Commonwealth. Comm. V. Erie & Pittsburgh Eailroad Co., 1873, 23 Sm., 94. It is not a presumption that an increase of stock is a stock dividend. Presumption as to assessment and payment of taxes under Acts of June 7, 1879 and June 10, 1881.— Comm. v. Lehigh Valley E. Co., 1883, 6 Out., 89. In view of the fact that no means are provided by the Acts of June 7, 1879 and June 10, 1881 for assessing the corporation taxes imposed by those Acts, it is the duty of the local assessors to value and assess corpor- ate bonds wherever found in the hands of resident owners ; and it must be presumed that these public oflScers have performed that duty and that the taxes are paid under such assessment. Legal existence of corporation outside of incorporating sover- eignty.— Matthews ». The Trustees, 1869, C. P., 2 Brewst., 441, 7 Phila., 106, 26 L. Int., 140. A corporation has presumptively no legal existence out of the sovereignty by which it was created. The burden is upon the corporation, or those making the assertion, to show that it is permitted to maintain its corporate existence in such foreign sovereignty. In the ab- sence of proof of such fact a corporation chartered by this State will be re- strained by injunction from carrying its assets beyond the borders of the State. Citizenship of corporators— Jurisdiction.— Allegheny County v. Cleve- land & Pittsbgh. E. Co., 1865, 1 Sm., 228. The menibers of a corporation are presumed in law to be citizens of the State which created the corporation ; a company incorporated by two States is a distinct corporation in each ; there- fore a suit against such a corporation by a citizen of .one of the States is pre- sumed to be a suit against defendants some Of whom are citizens of the same State' as the plaintiff ; and the Federal courts have not jurisdiction. Membership in corporation— Disaffirmance.— McHose v. Wheeler, 1863, 9 Wr.,32. The charter is prima fade evidence that all the persons named therein as corporators were such at the commencement. A person so named therein, if he be not a member, miibt immediately disavow his membership upon learning that such a use has been made of his name. Same. — ^Bill to compel issue of shares to party appearing as sub- scriber in certificate of incorporation. Evidence to overcome re- sponsive answer. Eowley's Appeal, 1887, 19 W. N. c., 280, 44 L. Int. , 309. Where a subscriber to the stock of a corporation, stated to be such in the cer- tificate of incorporation, is refused certificates for his shares upon the ground of a collateral understanding that he was to be regarded as a mere figure-head in the corporation, and that the stock standing opposite his name was to be virtu- ally the property of other corporators ; and in an equity suit brought by him to compel the issue to him of such shares, he testifies that he subscribed for them; and introduces in evidence the sworn certificate of incorporation showing such subscription ; an answer, acknowledging that the complainant subscribed, but setting up in defence the alleged understanding, though re- sponsive to the bill, is overcome by the corroboration afforded to the complain- ant's testimony by the certificate. Part J.l EVIDENCE. 193 Stockbook as evidence of ownership of stock.— Baker's Appeal, 1885, 12 Out., 510. Where a transfer of stock is made upon the hoo& of a corp- oration, but the transferee delivers to the transferor the certificates and an irrevocable power of attorney to re-transfer at the expiration of a certain period, the transaction being intended solely for the purpose of enabling stockholders to sell temporary privileges in the corporate property to out- siders, the name upon the stockbook vrUl not be regarded as conclusive evid- ence of ownership ; and such transfers may be restrained by co-stockholders. But ordinarily, the stockbook is the proper evidence of ownership. E.g., in distributing assets upon dissolution the corporate officers need consult it alone. Appeal of Bank of. Commerce, 1873, 23 Sm., 59 ; St. Nicholas Coal Co., 1880, C. P., 9W. N. C, 403. Eight to vote by proxy.— Wilson v. Academy of Music, 1886, C. P., 43 L. Int., 86, 2 C. C. E., 280. Where a charter gives to stockholders the right of voting by proxy at the organization of the corporation it will be pre- sumed that the stockholders may so vote at all subsequent elections, not- withstanding that a subsequent clause of the charter, providing for the mode of holding and conducting the jinnual elections, is silent upon the subject of proxies. The power also will be implied to vote by proxy " at all meetings when a stock vote has been ordered." Under authority to adopt such by- laws as may be deemed expedient for the well-being of the corporation, the directors may validly adopt by-laws to effectuate these implied powers. Ratification. — Kelsey v. The Bank, 1871, 19 Sm., 426. The maxim, Om- nis ratihabitio retrotrdhitur et mandatio aequiparatur applies as well to a corpor- ation as to an individual, and is equally to be presumed from the absence of dissent. Corporation's authorization of act punishable by penalty. — Hazleton Coal Co. V. Megargel, 1846, 4 B. , 324. There is no presumption of the special authorization by a corporation of an act of its officer beyond the scope of his general authority and which, if authorized by the corporation, would render it liable to a penalty therefor ; to render the corporation liable, such special authority must be proven. Comm. V. Ohio & Pennsylvania Railroad Co., 1856, 1 Gr., 329. A servant of a corporation who does an act punishable by a penalty is personally re- sponsible for it unless it be shown that his act was authorized by the corp- oration. There is no prima /acie presumption that he was so authorized. Presumption of corporate vote not recorded.— Bank of Kentucky v. Schuylkill Bank, 1846, C. P., 1 Parsons, 180. The omission of a corporar tion to record its own doings cannot prejudice the rights of a party relying on an actual vote of the corporation. A corporate vote may be presumed from other acts though there is no proof of such vote on the corporate rec- ords. Affirmed by Supreme Court. Authorization and lawfulness of corporate bonds.— Parkinson v. Parker 1877, 4 Nor., 313. The seal of a corporation to a bond isprima facie evidence that the corporation duly authorized its execution. See also Berks & Dauphin Turnpike Co. v. Myers, 1820, 6 S. & R., 16. McMasters ■». Reed, 1854, 1 Gr., 36. Bonds issued by a corporation having a grant of the ordinary corporate powers, like notes given by one partner in the name of the firm, will be intended to have been given for some legit- imate object until the contrary appears. There is no presumption against them. That an added memorandum forms part of a contract of subscrip- tion.— Robinson V. Pittsbgh. & Connellsville Railroad Co. , 1858, 8 C. , 334. In deciding whether a memorandum added to a formal contract of subscription refers to that or a previous subscription, the memorandum will be presumed to have been there when the subscription was made : affirminge Pitts., L. J., 106. Authorization of call for instalment.— Bavington v. Pittsbgh. & Steu- 194 EVIDENCE. IPart I. benville Bailroad Co., 1859, 10 C, 358. Proof of an anthorized call for a subsequent instalment is evidence that a former one had been made by authority. III. Proof in General: ReleTancy: "Written and Oral Evidence : Primary and Secondary Evid- ence: Variation of Documentary by Oral Evid- ence Etc. Admissions, declarations and acts of officers etc. as evidence against corporations.— Steamboat Co. v. McCuteheon, 1850,1 H., 12. The declarations of an officer of a corporation in transactions within the scope of his authority are admissible in evidence against the corporation and binding upon it. Spalding v. The Bank, 1848, 9 B., 28. The admissions as to matters with- in the scope of his agency of an officer of a corporation who is also its general agent are evidence against the corporation. Magill V. Kauffmann, 1818, 4 S. & E., 317. • The acts and declarations of the trustees and agents of an association both before and after incorporation are admissible in evidence against those represented. Hackney v. Allegheny Ins. Co., 1846, 4 B., 185. The declarations of an officer or agent of a corporation not within the scope of his authority do not bind the corporation, and are not admissible in evidence against it. Johnston v. Elizabeth Building ■Association, 1883, 8 Out., 394. Declara- tions by the secretary of a corporation as to the amount due on a mortgage held by it are not admissible in evidence in a suit on the mortgage, unless it be shown that the secretary had authority to bind the corporation by such admission. Contract by president under corporate seal. — ^Farmers' Bank v. McKee, 1845, 2 B. , 318. In order to make an agreement by the preadeut of a corporation under the corporate seal evidence against the corporation, it must be shown to be within the scope'of the president's authority. Mortgage by corporation— Objection on ground of corporation's lack of authority.— St. John's Church V. Steinmetz, 1852, 6 H., 273. A mortgage under a corporate seal cannot be rendered inadmissible in evidence on the ground that, the title of the corporation in the land in question being Inalienable, it had no power to mortgage, and that therefore the mortgage is not its deed. Recovery in trespass against corporate officer.— Goundie v. North- ampton Water Co., 1847, 7 B., 233. A recovery in an action of trespass against officers and agenis of a corporation is not evidence against the corp- oration without proof of privity. That A. was president of corporation— Checks. — Union Canal Co. v. Lloyd, 1842, 4 W. &. S., 393. Checks purporting to have been drawn by the president of a corporation fifty years previously in favor of contractors with the corporation, are admissible in evidence to show that the drawer acted as president. That act was done by de facto officer .—McGargel v. Hazleton Coal Co. , 1842, 4 W. & S., 424. Evidence is admissible in an action against a corpor- ation, that the person who did the act upon which suit is brought was an officer defaeto. Evidence on trial of quo warranto to test legality of corporate election.— Coram, v. Woelper, 1817, 3 S. & E., 28. On the trial of a quo warranto which puts in issue the legality of an election conversations and confederacies between the members previous to the election are admissible in evidence when connected with the election. Same— Proof of presence of quorum.— Comm. v. Bead, 1839, 2 Ash., 261. Where at a corporate election some of the electors have refused to Part J.] EVIDENCE. 195 vote at all the fact that a number of electors equal to a qnornm actually voted is not the only admissible evidence, in a proceeding to test the validity of the election, to prove that a quorum were present at the meeting. Although the number of votes cast was less than a quorum, the fact that a quorum were present may be proved by the usual modes of evidence. Befiisal to permit transfer !of bequeathed stock on ground of in- debtedness—Agreement as to division of stock etc. — Presbyterian Congregation v. Carlisle Bank, 1847, 5 B., 345. Where a testator has be- queathed forty shares of bank stock to four persons in equal shares, and the bank has permitted a transfer by three of the legatees of thirty of the shares, it cannot afterward, upon the attainment of majority by the fourth legatee, refuse to permit a transfer by him of the remaining ten shares, on the ground of the indebtedness to the bank of two of the three other legatees. The per- mission of the bank that three fourths of the stock should be so assigned was an assent by it to the severance of the title of the fourth legatee and notice that the remaining shares were his sole property. In an action against the bank for a refusal to permit such transfer it is error to reject evidence of an agnpement between the legatees and the executor that the stock should be divided, the thirty shares so transferred and the re- maining ten retained for the fourth legatee until majority. What evidence is admissible to aid interpretation of charter.— Bank of Penna. v. Comm., 1852, 7 H., 144. In construing an act of incorp- oration no evidence outside of the act, such as the legislative journals or in- tentions and opinions of members of either branch of the Legislature, is ad- missible. Comm. V. Girard Bank, 1860, C. P., Dauphin, 1 Pear., 323. Evidence of the opinion of the Grovemor of the State given upon the signing of a bill ex- tending a charter and granting a certain immunity from taxation and the opinion of the Attorney General are not admissible in evidence in an issue involving the interpretation of the charter. Central Pennsylvania Telepone & Supply Co. v. Thompson, 1886, 17 W. N. C, 329. It seems that the title of a corporation can be allowed to furnish no presumption as to its object and design. See also Boyd v. Ins. Patrol, 18 W. N. C, 209, infra. Supreme Lodge, Knights of Honor v. Martin, 1883, C. P., 13 W. N. C, 160. Rules and regulations made by a corporation to carry into effect the provisions of its charter, when not in violation of the laws of the Common- wealth, are to be recognized in judicial proceedings as authoritative inter- pretations of the constitution binding upon the members. Weckerly v. Geyer, 1824, 11 S. & K., 34. In an action against the ofiScers who conducted a church election for refusing to receive the plaintiff's vote, upon the ground that he was not qualified, where evidence of the practice at former elections has been admitted without objection, it is not error for the court to charge the jury that such evidence is admissible to show the true construction of the charter of the church. Name of contracting corporation— Latent ambiguity.— Berks & Dauphin Turnpike Co. v. Myers, 1820, 6 S. & K., 10. A departure from the strict style of a coi-poration will not avoid its contracts if it substantially appear that the particular corporation was intended ; and a latent ambig- uity may, under proper averments, be explained by parol evidence. Guaranty of bonds of another corporation.— Coxe v. Camden & Atlant- ic E. Co., 1885, C. P., 42 L. Int., 151. What is sufScient evidence upon which to submit to a jury the question whether the stockholders of a defend- ant railroad company had binding knowledge of the company's guaranty of the interest upon bonds of a leased road. Affirmed: 18 W. N. C, 20. Unrecorded charter.— O'Neill v. Patterson, 1880, 27 Pitts. L. J., 189. To establish error in rejecting a paper offered as a charter of incorporation on the ground that it was not recorded, it must be made to appear that that defect did not exist. 196 EVIDENCE. [Pari T. Corporate books and records. — Farmers' & Mechanics' Bank r. Boraef, 1829, 1 E., 152. Eutrie.s in the books of a corporation, supported by the oath of the party who made them, are competent evidence for the corpora- tion. See also Meighen v. The Bank, 1855, 1 C, 288. Fleming v. Wallace, 1796, 2 Y., 120. An original corporation book is admissible in evidence in favor of the corporation, to prove proceedings of the trustees, in a suit by it against one of ite members. Comm. V. Woelper, 1817, 3 S. & E., 28. The books of a corporation con- taining minutes of its transactions are evidence in disputes between mem- bers, though not as against strangers. Same — Authentication. — Pittsburgh Coal Co. v. Foster, 1868, 9 Sm., 365. Corporation books do not prove themselves. Evidence must be given of their true character. Union Canal Co. v. Lloyd, 1842, 3 W. & S., 393. Books purporting to be those of a corporation plaintiff aresufficiently authenticated to be atleastprima facie considered as such after the lapse of many years when they are found in their proper place, produced by the proper officer and sworn to be the records of the company or office. Same — ^Examined copy. — Eidgway v. Farmers' Bank, 1825, 12 S. & E., 255. An examined copy of the books of an incorporated bank, uncorrobo- rated by any other proof, is not evidence. But it seems that it would be evidence in cases where the office of the bank is at a great distance, if accompanied by proof that the original entries were made by an officer of the bank, the officer himself being produced, if to be found, otherwise his handwriting being proved. See also Gochenauer v. Good, 1831, 3 P. & W., 274. Same— As to acts necessary to corporate existence. — Grant v. Henry Clay Coal Co., 1876, 30 Sm., 208. The minute book of a corporation maybe received in evidence for the purpose of showing the acts of the corporation necessary to be done in order to its corporate existence. Same— As to the fact of subscription for stock. Phila. & Westchester Eailroad Co. v. Hickman, 1857, 4 C, 318. The books of a corporation pur- porting to contain subscriptions to its stock are not of themselves evidence of such subscriptions. Where stock book is not conclusive as to ownership of stock.— Baker's Appeal, 1885, 12 Out., 510. Where a transfer of stock is made upon the books of a corporation but the transferee delivers to the transferor the certificates and an irrevocable power of attorney to re-transfer at the expira- tion of a certain period, the transaction being intended solely for the pur- pose of enabling stockholders to sell temporary privileges in the corporate property to outsiders, the name upon the stockbook will not be regarded as donclusive evidence of ownership ; and such transffers may be restrained by co-stockholders. But ordinarily the stockbook is the proper evidence of the ownership. E.g. , in distributing assets upon dissolution the corporate officers need consult it alone : Appeal of Bank of Commerce, 1873, 23 Sm., 59: St. Nicholas Coal Co., 1880, C. P., 9 W. N. C, 403. As to amount of instahnents due on stock.— Bavington v. Pitts. & SteubenviUe Eailroad Co., 1859, 10 C, 358. The books of a corporation are competent evidence against a member to prove the amount of the instalments due upon his stock and the calls made therefor. See also Hays v. Pittsbgh. & SteubenviUe Eailroad Co., 1860, 2 Wr., 81. In mandamus proceedings to restore expelled member— Want of notice.— Washington Beneficial Society v. Bacher, 1853, 8 H., 425. Where the by-laws of a society provide that no member shall be expelled without a certain notice of the charges pieferred against him, the failure to give such notice renders an expulsion invalid ; and in an issue in mandamus proceed- ings to restore the expelled member neither the minutes of the void pro- Pirt Z] EVIDENCE. 197 ceedings nor oral testimony of what the officer who served notice stated to the society at the meeting at which the expulsion was directed are evidence for the society. Parol condition of subscription.— McCarty v. Selinsgrove &c. Railroad Co., 1878, 6 Nor., 332. A condition attached to a subscription to stock en- tered into after the organization of a corporation is valid, provided that it does not injuriously affect the rights of co-subscribers ; and the existence and nature of such a condition may be shown by parol when the condition was by parol. Signatures of subscribers— Acknowledgment.— Phila. & West Ches- ter Railroad Co. v. Hickman, 1857, 4 C, 318. Where a party subscribes to stock on condition that others subscribe, it is implied in the contract thatthe conditional subscriber shall be charged by any evidence which would be sufficient to charge the others in actions brought against them on their sub- scriptions. The acknowledgment of their signatures, although after action brought, is therefore sufficient. Corporator's assent, as against third party, to corporate act. — Union Canal Co. v. Lloyd, 1849, 4 W. & S., 393. Corporation books are evidence in favor of the corporation against a third person to prove, by the record thereof in such books, the assent of a corporator, under whom the plaintiff claims, to an act of the corporation whereby a superior title was vested in it. Failure of recorded resolution ordering call to specify amount- Other evidence. — ^Liviugstone v. Pittsbgh. & Steuben ville Railroad Co., 1859, 2 Gr., 219. A recovery by a corporation of instalments due on stock will not be defeated by the feet that the recorded resolntion of the board of directors ordering the call specifies no definite amount. The amount and the time of payment may be shown by any other evidence sufficient to sat- isfy the jury that there was a call for a definite amount payable at a definite time. Action for unpaid subscriptions — ^Evidence that stockholder is worth par value of his stock, when inadmissible. — Citizens' & Miners' Savings Bank v. Gillespie, 1887, 19 W. N. C, 257. In au action to recover the amount of an unpaid subscription the admission of evidence that a cert- ain stockholder, alleged to hold a certain amount of stock, is worth its par value, the object being to show that the whole amount of unpaid stock is not needed to pay the debts of the corporation, is error where there is no evidence that h.e held more than a much smaller amount. Amount of expenses incurred by trustees for which defendant corp- orator is liable — Defendant's membership. — Comfort v. Leland, 1837, 3 Whart., 81. In an action to recover against a corporator his proportion of certain expenses incurred by the trustees, for which the corporators are by the charter made liable, the books of the corporation are admissible in evid- ence to show the amount of such expenses incurred and the amount thereof for which the defendant is alleged to have become liable, but they are not admissible for the purpose of proving that the defendant has acted as a corp- orator and has been recognized by the company as such. Parol evidence to vary minutes. — Building Association v. Goldbeck, 1883, 13 W. N. C, 24, 40 L. Int., 174. The minutes of a corporation are not the only evidence of its acts. Omissions in the minutes may be sup- plied by parol testimony. See also, as to presumption of corporate vote not recorded. Bank of Kentucky v. Schuylkill Bank, II, mpra. Miller v. The Church, 1860, D. C, Phila., 17 L. Int., 12. Dubitatwr whether speeches made at a corporation meeting, whether contradicted or not, are admissible to explain or vary the legal effect of an adopted and re- corded resolntion. Parol evidence to show directors' assent to transfer of stock.— Pittsbgh. & Connellsville Railroad Co. ,: Clarke, 1857, 5 C, 146. The proper evidence of the assent of a board of directors to a transfer of stock 198 EVIDENCE. IPart I. is a recorded resolution adopted when the board was in session ; parol evid- ence is admissible only when the minute of such resolution is lost or de- stroyed. Adoption of charter not recorded in minutes. — Hochreiter's Appeal, 1880, 12 Nor., 479. What is sufficient evidence of the adoption of a charter by an unincorporated association, without a formal entry of its adoption in the minutes. Subscription — ^Ratification of, — McCully v. Pittsbgh. & Connellsviile Railroad Co.. 1858, 8 C, 25. A subscription to the stock of a corporation in the name of a third person without precedent authority is an act which is capable of ratification. A letter of attorney executed by the person in whose name a subscription was made, constituting the attorney his proxy to vote at a meeting of the company, is evidence of ratification of such person's con- tract of subscription to be submitted to the jury. See, as to ratification of, and estoppel to deny subscription, generally, Sub- scription. Same— Whether for stock of plaintiff corporation. — Mns.selman v. East Brandywine &c. Railroad Co., 1875, 2 W. N. C, 105, 6 Lane. B., 85. Evidence of attending circumstances is admissible to show that a subscrip- tion to the stock of a corporation having no existence was in fact intended as a subscription to the stock of the corporation plaintiff. Same— Re-assumption of,— Participation.— Pittsburgh & Connellsviile Railroad Co. ■;;. Stewart, 1861, 5 Wr., 54. The active participation by a re- leased subscriber in the meetings and affairs of the corporation are not evid- ence of a re-assumption ot his original subscription when a new and different contract of subscription is shown. Same^Evidence of agreement that payment need not be made- Fraud.— Custar u. Titnsville Gas & Water Co., 1869, 13 Sm., 381. In an action by a corporation upon a contract of subscription an offer by the de- fendant to prove merely an agreement by the president of the corporation that a subscriber should not be called upon for payment of his subscription cannot be received as evidence of such fraud upon bona fide subscribers as would release them from liability upon their contract. Such an offer must, to be admissible for that purpose, be merely a link in a chain of evidence to show a general scheme of fraud on the part of the company to procure worthless subscriptions in order to inveigle others. The law will not presume in such a case that the argreement of the president was authorized by the corpora- tion. But it is error to reject an offer to show a release by the corporation. Same— Release by resolution of directors— Repeal of resolution.— Bedford Railroad Co. v. Bowser, 1864, 12 Wr., 29. In an action upon a sub- scription in which the question at issue is whether or not the defendant's relation as a corporator has terminated the minute books of the board of directors are admissible in evidence against the defendant to show that a resolution the effect of which was intended to be the release of the defend- ant, with other subscribers, from liability was repealed by a subsequent board. Same— Parol condition— How admissible.— McClure v. People's Freight Railway Co., 1879, 9 Nor., 269. In an action upon a subscription in which the covenant was to pay money upon call, the defendant cannot give evid- ence of an oral agreement that he might pay in materials and services with- out offering to show that he attempted to ascertain, upon the issuing of the calls, when and where he could furnish such materials and services. Payments upon stock— Corporate books.— North America Building Association v. Sutton, 1860, 11 C, 463. An official corporation book con- taining entries of payments by a member is admissible, in an action by such member against the corporation, to prove the payments made by the plaint- iff upon the stock, notwithstanding that they contain evidence of pavments by such member for other purposes. Such books are admissible without the production of the officer by whom such receipts were signed. Part J.] EVIDENCE. 199 Corporate character— Charter.— Boyd v. Insurance Patrol, 1886, 18 W. N. C, 209. The character of a corporation, e.g., whether a charity or not, is not to be determined solely from the language of its charter ; it is to be de- termined, not solely by its stated object, but also by the mode in which that object is sought to be attained. Acceptance of charter. — Shortz v. XJnangst, 1841, 3 W. & S., 45. In an action in which the validity of a charter is material, and in which it is held that such charter is invalid as having failed to receive the assent of the society in its associate capacity, evidence to prove that it would have been accepted by all the members had not its contents been misrepresented, is not admissible. Abandonment of corporate works. — Gnss v. West Chester E. Co., 1878, C. P., Chester, 1 Chest. Co., 363. Withdrawal from the use of property for corporate purposes, persisted in for many years, with no evidence of inten- tion to resume it in the future, or motive to do so, is sufficient evidence of abandonment. Custom as evidence to disprove corporation's liability.— Meighen v. The Bank, 1855, 1 C, 288. Evidence of the customs and usages of a corp- oration, although not competent of itself to disprove a liability of the corp- oration, is admissible in explanation or corroboration of a fact already in evidence. Taxation— Evidence of value and amount of corporate stock.— Comm. V. Erie Railway Co., 1871, C. P., Dauphin, 2 Pear., 380. An ap- praisement for the purposes of taxation, of the value of the capital stock ol a corporation which declared no dividends, made by its officers in accord- ance with the provisions of the Act of May 1, 1868, is not conclusive on the Commonwealth ; but the newspaper reports of the price for which the stock is sold are not evidence of its value. Citizens' Railway Co. v. Philadelphia, 1865, 13 Wr.J 251. Corporation dividends, taxable after reaching a certain percentage of the stock, are to be estimated for purposes of taxation upon the basis of the paid up, and not of the authorized stock. And the official statement by the corporation itself to the Auditor- General is tobe accepted as the best evidence of the amount of such stock. IV. Competency of "Witnesses. Competency of corporators where corporation is a party.— Davies v. Morris, 1851, 5 H., 205. Members of corporations not for profit, as religious and charitable societies, having no personal or private interest in the prop- erty held by the corxwration, are competent witnesses in a suit to which the corporation is a party. See also Juker v. Comm., 1853, 8 H., 484. Fleming v. Wallace, 1796, 2 Y., 120. The members of a corporation not for profit are competent witnesses for the corporation in a suit by it against one of its own members. Aliter as to corporations for profit : Phila. & West Chester R. Co. v. Hick- Washington Beneficial Society v. Bacher, 1853, 8 H., 425. Where the capital of a corporation consists, as in the case of a beneficial society, of the liabilitv of the members to the payment of such sums of money as the society may from time to time require, each member is personally liable in equity for his proportion of the debts of the corporation, and has a direct interest which excludes him from giving testimony in its favor against the claim of a creditor. Same— Proof of service of notice.— Crozer v. Leland, 1838, 4 Whart., 12 In an action brought by a corporation a member thereof is not a compet- ent witness to prove service of notice where that is a part of the issue. 200 EVIDENCB. [/"art /. Same— Oompetency after assignment of stock.— Bank v. Green, 1834, 3 Wts., 374. One who had been a stockholder in a solvent corporation and had assigned his stock to the corporation in payment of a debt ia a competent witness for the corporation. Smith V. "Washington Bank, 1819, 5 S. & R., 317. A stockholder in a solvent corporation may assign his stock after suit brought and thereby render himself competent to testify in fevor of the corporation Approved in Carter v. Trueman, 1847, 7 B., 315. See also Bank v. Green, 1834, 3 Wts. 374; Hartman v. Ins. Co., 1853, 9 H., 466; Meighen v. The Bank, 1855, I C, 288. Same — ^Assignment with guaranty of par value. — Grayble v. York & Gettysburg Turnpike Co., 1823, 10 S. & R., 268. In an action to recover the amount of a stock subscription, a person who has been a stockholder in the company and. who has sold his stock vrith a guaranty of its par value and a promise that if it did not sell at par, he would make up the deficiency, is not a competent witness for the company. Same — Salaried ofB.cer. — PhUa. Ins. Co. v. Washington Ins. Co., 1854, II H., 250. A salaried officer of a corporation, not a stockholder and not a party to the record, is a competent witness for the corporation in a suit against it. Promissory note— Corporation treasurer. — Maule v. Partridge, 1863, D. C, 3 Luz. Leg. Obs., 180, 5 Leg. & Ins. Eep., 66. The treasurer of a corporation who is the payee and indorser of a promissory note is a com- petent witness in a snit by the indorsee against the maker. Action by corporation on note— Payee— Application of stock and dividends to payment of note. — ^Elopp v. Lebanon Valley Bank, 1861, 3 Wr., 489. In an action by a corporation upon a promissory note gainst the makers thereof one of the payees is not competent to prove that the payees and indoisers were the real debtors, althongh the object of such testimony be to show that the alleged real debtors held stock and accrued dividends in the plaintiff corporation which the latter is bound to retain and apply in payment of the note. Nor, were the witness competent, could such an appli- cation be compelled. Coupons of corporate bonds— Eule of Walton v. Shelley.— Columbia Coal & Iron Co. v. Fox, 1859, 16 L. Int., 204. The coupons of corporation bonds are not within the rule of Walton v. Shelley. IT. Miscellaneous : Practice Etc. Production of corporate books etc. — Snbpcena duces tecum.— Lorenz V. Lehigh Valley Navigation Co., 1873, D. C, 5 Leg. Gaz., 174. Jt seems that where the production of the boo^ or papers of a corporation before a commissioner to take depositions is necessary and proper, a giibpama duces tecum will be issued to the officer having the custody of them and he will he compelled to produce them, whether he has authorilrf so to do from the board of directors or not. Monroe v. Building Association, C. P., 1883, 14 W. N. C 107. An officer of a corporation cannot be compelled to produce the books of the corporation in answer to a subpoena duces tecum until they have been identified and it has been made to appear by testimony that they are under the custody and con- trol of the vritness. Discontinuance entered at direction of minority of directors of plaintiff corporation— Evidence upon rule to strike off,— Pittsburgh Coal Bailroad Co. v. Pittsburgh Southern KaUway Co., 1882, C. P., Allegheny, 30 Pitts. L. J., 216. Where a rule is taken by a stockholder to show cause why a discontinuance should not be stricken off in a snit by the corporation of which he is a member, the discontinuance having been entered at the Parti.'] EVIDENCE — EXECUTION. 201 direction of the minority of the board of directors, the court will not com- pel the production before a commissioner appointed to take testimony on the rule of a paper containing a settlement of the differences between the plaint- iff corporation and the defendant where there is no question raised as to the propriety and justice to the stockholders of the agreement by which the dis- continuance was induced. What the return must set forth in mandamus proceedings ta re- store expelled member—" Sufficient evidence " of member's guilt.— Society for Visitation of The Sick &c. v. Comm., 1866, 2 Sm., 125. In a proceeding by mandamus to compel restoration to membership in a corpora- tion the return must set forth distinctly all the fiiets essential to the convic- tion both as to the cause of disfranchisement and the mode of proceeding. Where a by-law expressly declares that an expulsion must be founded on " suf&cient evidence," the fact that the relator was found guilty on sufficient evidence must set be forth ; a statement that he was expelled "according to the terms of the constitution and by-laws " is not sufScient. Witness fees and mileage of corporation officers. — First National Bank of Mount Joy ». Greider, 1873, C. P., Lancaster, 5 Lane. B., 1, 2 Chest. Co., 204. Officers and employees of a plaintiff corporation when sub- poenaed and compelled to attend court are entitled to witness fees and mile- age, to be taxed as costs. See also Kafroth v. Reading & Columbia E. Co., 1872, C. P., Lancaster, 4 Lane. B., No. 13 ; Salmon Creek Co. v. Dusenberry, C. P., Forest, 2 Chest. Co. 205; Wilson v. Mut. Fire Ins. Co., C. P., Montgomery, 1 C. C. E., 11. Susquehanna Mutual Fire Ins. Co. v. Commercial Ins Co., 1886, C. P., 18 W. N. C, 132. The officersof a plaintiff corporation are entitled to witness fees and mileage though appearing on behalf of the plaintiff. McFarland v. Ligonier Valley E. Co., 1885, C. P., Westmoreland, 42 L. Int., 56. The officers and directors of a corporation defendant are not en- titled to costs as vritnesses unless duly subpoenaed as witnesses merely. EXCEPTIONS. To corporation's bond for land damages, see Eminent Domain, IV, 4, c. To award of land damages, see Id., V, 6. Exci^rsrvE piiivii,eges. See Pwoersof Corporations, Liabilities and Duties of Corporations. EXECUTION. I. AGAINST CORPOEATIONS. 1. In Genebal : Fobm and Mode: Fieri Facias, Se«uestba- TioN Etc. 2. What May be Taken. 3. DiSTBIBUTION OF PEOCEEDS : PEIOBITY ETC. 4. Miscellaneous. II. AGAINST INDIVIDUALS. See also Attachment. 202 EXECUTION. [_Part I. I. Agfainst Corporations. 1. In Oeneral: Form, and Mode: Fieri Facias, Sequestration Etc. Upon assessment of damages for land taken under the right of eminent domain. — Neall v. Pittsburgh & Connellsville Bailroad Co., 1854, 7 C, 19. When the works of a corporation have been located under the right of eminent domain upon a trax^ of land, the assessment of dam- ages and confirmation of the assessment constitute a judgment in favor ol the owner for the amount awarded, upon which he is entitled to execution although the company does not take possession and desires to change the route. Fi. fa. under Act of April 7, 1870— Bepeal of Act of 1836.— Philadel- phia & Baltimore Central Bailroad Company's Appeal, 1872, 20 Sm., 355. The Act of April 7, 1870 (P. L., 58), allows the property of a corporation to be sold under afi. fa. It repeals the provisions of the Act of 1836 relating to sequestration, and a writ of sequestration will not lie. See also Bayard's Appeal, 1872, 22 Sm., 453. Fox I). Hempfield Railroad Co., 1870, U. S. C. C, 28 L. Int., 4. The Act of 1870, relating to executions against corporations, does not absolutely re- peal the 72nd Section of the Act of 1836. Its provisions are " in addition to " and " in lien of" those of the latter. All the preliminaries provided for by the Act of 1836 must be complied with before levy can be made. Previous demand on corporation. Hassall v. Union Canal Co., 188 4, C. p., 1 C. C. R., 147. Demand must be made at the principal office of the corporation defendant in accordance with the Act of June 16, 1836, i 72, betore execution can issue under the Act of 1870. Previous return of nulla bona.— Flagg v. Famsworth, 1883, C. P., 40 L. Int., 36, 16 Phila., 57. Under the Act of April 7, 1870, providing for the substitution of fieri facias execution against corporations instead of seques- tration, it is necessary that an ordinary writ of fieri fadaa should first issue against the property of the corporation, and be returned nulla bona, before resort may be had to the second writ of fieri facias against the franchises and essential property. Williams v. Lawrenceville & Evergreen Passenger Railway Co., 1874, D. C, Allegheny, 21 Pitts. L. J., 187. The franchises and property of a corp- oration ^except lands held in fee) may be levied upon and sold under the Act of April 7, 1870, on &fi. fa. without a previous return of nuila brnia 1o an original^. /a. Sale under ordinary fi. fi.— Validity.— Lusk's Appeal, 1884, 12 Out., 152. The sale of a corporation's property and iianchises under an ordinary fi. fa., without objection, will not be set aside because of such irregularity in a collateral proceeding several years after the confirmation of the sale. Testatum fi.fo.— Rootu. Oil Creek & Allegheny Railroad Co., 1874, C. P., Delaware, 31 L. Int., 285. It seems that a testatum fi. fa. cannot issue against a corporation. The Act of 1870 relating to write of fi. fa. against corporations makes no express provision for testatum vmts, but makes the corporation's property in every county in the State subject to levy under the ordinary,^. /a. Corporation trustee.— North American Land Co.'s Estate, 1868, C. P., 1 Brewst., 533. An attachment cannot issue to compel payment by a corp- oration trustee. But execution will be awarded. Fire Insurance Patrol v. Boyd, 1887, C. P., 44 L. Int., 252. A corporation whose object is " to protect life and property in, or contiguous to burning buildings, and to remove and take charge of such property " is of a quasi- public character ; and executions j^inst it must be under the Act of 1870. Execution upon judgment in ejectment against corporation for un- lawful entry— Injunction to restrain,— Pittsburgh & Lake Erie R. Co. v. Fart 7.] execution. 203 Bruce, 1882, G Ont., 23. It seems that where a judgment is obtained in an action of ejectment against a corporation for entry upon land without pay- ment or tender of damages, the company may secure its right of way and save its improvements by having the damages assessed as provided by law, and the court may by injunction restrain execution upon the judgment until this is accomplished. Injunction to restrain sale— Insolvency— Stockholders as creditors. — Folmer v. Shenandoah Valley Bank, 1881, C. P., Schuylkill, 2 Schuylk. Leg. Rec, 37. An injunction will not be granted to restrain execution creditors from selling the assets of an insolvent corporation on the ground that the property may at a sherifl's sale bring less than its real value, nor on the ground that the execution creditors are stockholders in the corporation and as such liable for assessments on their stock in case of any deficiency of assets. Betum of execution unsatisfied— Sequestration— Successive execu- tions—Discovery. — Reid V. North Western Railroad Ck>., 1858, 8 C, 257. The return of the previous execution unsatisfied is sufficient to warrant the issuing of a writ of sequestration ; and the truth of such return is not sub- ject to review upon error. Large v. Transportation Co., 1841, 2 Ash.. 394. A plaintiff who had issued execution against a corporation was not obliged, upon the return of the execution in whole or in part unsatisfied, to proceed to sequestration. He could sue out successive executions until he was satisfied. And he might have a bill of discovery in aid of his execution. See also Bevans v. Turnpike Co., 1849, 10 B., 174. Sequestration — Notice. — Reid v. North Western BaUroad Co., 1858, 8 C, 257. A writ of sequestration under the Act of June 16, 1836, may issue without previous notice. Same — ^Defendant's lack of assets. Reid v. North Western Railroad Co., 1858, 8 C, 257. It is no ground for refusing a vrrit of sequestration that the defendant corporation may have no assets which may be taken upon such writ. Same — ^Upon transferred judgment. — Reid v. North Western Railroad Co., 1858, 8 C., 257. A writ of sequestration under Section 73 of the Act of June 16, 1836 may issue upon a judgment transferred to another county under the Act of April 16, 1840. Same — On bill in. equity. — ^Wesley Church v. Moore, 1849, 10 B. , 273. An execution on a bill in equity as well as on a judgment at law is within the Act of 1836 specifying the manner of levying on the property of corpora- tions ; but the former is also confined in the same manner as the latter. Same— Repeal of acts providing special remedies.— Hanover &c. Turnpike Co. v. Craighead, 1846, 5 B., 470. The Act of 1836, providing the remedy of sequestration against corporations, virtually repealed all former acts inconsistent with it, providing special remedies in particular cases. Turnpike Co. v. Wallace, 1839, 8 Wts., 316. A corporation in which the State owns a principal part of the stock is not a public corporate body within the meaning of the exception in the Act of June 16, 1836. Same— Powers of sequestrators.— Betts v. Harrisburg Railroad Co., 1845, D. C, Phila., 2 Clark, 524, 4 P. L. J., 322. In awarding a writ of sequestration under the 73rd Section of the Act of June 16, 1836 the courts followed the Act and would not interpret the words of the Act in the writ itself, nor define therein, by reference toother acts of Assembly or otherwise, the powers of the sequestrators. George v. Lawrence, 1859, C. P., Dauphin, 1 Pear., 159. A sequestrator is entitled to take charge of every description of the corporation's assets. Muncy Creek Railway Co. v. Hall, 1877, 3 Nor., 459. Where a corpora- tion whose works are unfinished passes into the hands of a sequestrator, the latter is entitled to the revenues of the company but has no right to take charge of the works. 204 EXECUTION. [Part I. Same — ^Property ontside of county. — ^Tnmpike Co. ». Wallace, 1839, 8 Wts., 316. The court where judgment Is rendered in sequestration proceed- ings has power to take in execution property of the debtor corporation located without the county. Same — When not vacated. — Craddocks v. Ins. Co., 1863, D. C, 5 Phila., 149, 20 L. Int., 124. A writ of sequestration against a corporation issued on a judgment, and the appointment of a sequestrator, cannot be vacated by consent of the creditor at whose instance the proceedings were taken. A sequestration, like a commissionei in bankruptcy, vests the corporate prop- erty in the sequestrator for the common good of the common creditors. 3. What May be Talcen. Property in use not subject to execution separately.— Longstreth v. Philadelphia & Reading Eailroad Co., 1882, 11 W. N. C, 309. The prop- erty of a corporation in actual use for the exercise of its franchises is not lia- ble to execution apart from the franchises of the company. The Act of April 7, 1870 (P. L., 58), extending the right of execution against a corpor- ation to all its property, does not subject property before exempt to execu- tion piecemeal: affirming 11 W. N. C, 94. Same— BoUing stock of foreign corporation. — Buffalo Coal Co. v. Eochester &c. E. Co., 1880, C. P., McKean, 8 W. N. C, 126. Rolling stock found within this State, belonging to a foreign corporation, is subject to seizure upon a writ of foreign attachment. Exemption of property necessary to exercise of franchises. — Am- mant«. New Alexandria &c. Turnpike Co., 1825, 13S. &R., 210. Property es- sentially necessary to the enjoyment of corporate rights and privileges cannot be taken in execution by creditors of the corporation ; the proper remedy is by sequestration. See also Susquehanna Canal Co. ■». Bonham, 1845, 9 W. & S., 27. Plymouth Eailroad Co. v. Colwell, 1861, 3 Wr., 337. Property owned bv a corporation created for the accomplishment of objects in which the public has a direct interest, appropriated to, and necessary for the corporate pur- poses, is exempt from levy and sale. The purchaser of property of such corporations takes only so much as is not necessary for the exercise of the corporate functions. Same— Corporation may object to levy without intervention of mortgagee.— <}ovey v. Pittsburgh &c. Eailroad Co., 1858, C. P., Beaver, 3 PhUa., 173, 15 L. Int., 228. Property of a quasi-public corporation which is necessary to the exercise of its franchises cannot be levied on by ^. fa. on an ordinary debt. This principle rests upon public jralicy ; the corporation may itself object to such levy, without theinterventioii of a mortgagee of its property. Same— Where corporate works are not completed.— Plymouth Eail- road Co. 1). Colwell, 1861, 3 Wr., 337. A corporation created for the prose- cution of a public work cannot claim, on the ground that it is necessary to the exercise of its corporate functions, property purchased at an execution sale upon a judgment against it, where it has not completed its works within the time limited by its charter. Same— What property is not so necessary. — Loudenschlager ». Benton, 1861, 3 Gr., 384, 4 Phila., 382. Such goods as unfinished cars, sleighs, stoves, omnibuses, clocks, shovels, looking glasses, carpet etc., held not to be such indispensable accessories to the franchise of a passenger railway com- pany as to be exempt from levy by ordinary judgment creditors. See, as to the question of indispensability as related to taxation. Taxation. Where public works of jointly incorporated company lie partly be- yond Penna.— Graham v. Penna. & Ohio Canal Co., 1872, C. P., Lawrence, 3 Crum., 341, 19 Pitts. L. J., 101. Where a company is incorporated by •Part /.] EXECUTION. 205 the joint acts of the Pennsylvania Legislature and that of an adjoining State, and the public works of the company lie partly in Pennsylvania and partly in the adjoining State, that part of the property of the company lying in Pennsylvania cannot be taken and sold on a. fieri facias against the corpora- tion. Such execution is not within the purview of the Act of April 7, 1870. Property in county other than that in which execution issues.— Hassall v. Union Canal Co., 1884, C. P., 2 C. C. E., 147. Under the Act of 1870, J 2, execution can be levied upon the property of a corporation in counties other than that in which the execution issues only where levy has first been made in the latter. The sheriff cannot levy in other counties when the corporation has no property in his own. Same— Sequestration.— Turnpike Co. v. Wallace, 1839, 8 Wts., 316. The court where judgment is rendered in sequestration proceedings has power to take in execution property of the debtor corporation located with- out the county. 3. IHstributUm of Proceeds : Priority Etc. Rights of execution creditors as against mortgagees.— Covey v. Pitts- burgh &c. Railroad Co., 1858, C. P., Beaver, 3 Phila., 173, 15 L. Int., 228. A mortgage of the entire property of a corporation is valid as against an exe- cution creditor without delivery of possessifin to the mortgagee. See also Loudenschlager r. Benton, 1861, 3 Gr., 384, 4 Phila., 382. Merchants' Bank v. Petersburgh Railroad Co., 1877, C. P., 4 W. N. C, 264. A mortgagee out of possession of the personal property of a corporation has no priority over a lien creditor. As against general creditors. — Fairmount Coal & Iron Co.'s Appeal, 1884, 14 W. N. C., 214. The proceeds of an execution sale of that property of a corporation which is not necessary to the exercise of its franchises go to the execution creditor to the exclusion of the general creditors. Distribution as in case of insolvency — Act of April 7, 1870. — Bay- ard's Appeal, 1872, 22 Sm., 453. The proceeds of asherififs sale of the prop- erty and franchises of a corporation under the Act of 1870 are to be distrib- uted among all the creditors as in the case of insolvency. The levy under such an execution does not create a lieu on the property seized. See also Hopkins' Appeal, 1879, 9 Nor., 69. Hoge's Appeal, 1873, 30 L. Int., 28, 20 Pitts. L. J., 82. The Act of April 7, 1870, relating to executions against corporations, repeals the Act of 1836, relating to sequestration, so far as it supersedes the latter remedy ; but it does not repeal the rule of distribution provided by the Act of 1836. Steiner's Appeal, 1856, 3 C, 313. Moneys received by a sequestrator are to be distributed amongst all the creditors of the corporation according to the rules prevailing in the case of the insolvency of natural persons. Same — Property not necessary to exercise of franchises — ^Return of Nulla bona— Appointment of receiver. — Titusville Bank v. Manufactaii- ing Co., 1883, C. P., Erie, 13 W. N. C, 174. Although the sequestration process of the Act of 1836 is repealed by the Act of April 7, 1870 (P. L., 58), its execution process and the provisions incident thereto remain in lull force. The proceeds of an execution sale of the general property of a corporation, i.e., such property as is not necessary to the exercise of iia franchises, is not to be distributed ^0 rata amongits creditors as in case of insolvency, though the corporation be in fact Insolvent, unless the fact of its insolvency has been previously established by a return of Nulla bona. Such proceeds are to be distributed according to priority of execution lien. This rule is not affected by the fact that a receiver was appointed after the property was taken in exe- cution. Revenues received between date of judgment and appointment of sequestrator. — Leedom v. Plymouth Railroad Co., 1843, 5 W. & S., 265. A 206 EXECUTION. {Part I. judgment creditor of a corporation which is in the hands of a sequestrator cannot claim priority in payment out of tolls received after the rendi*ion of the judgment and the appointment of the sequestrator. Commonwealth as execution creditor. — Commonwealth's Appeal, 1872, 29 L. Int., 381, 20 Pitts. L. J., 69. The CJommon wealth has no priority as an execution creditor in distribution of the proceeds of the sale of a corpora- tion's franchise under the Act of 1870. Application of proceeds to creditor's indebtedness on subscrip- tion. — Hogg's Appeal, 1878, 7 Nor., 195. Upon a sherifl's sale of the prop- erty and franchises of a corporation a creditor of the coriX)ration cannot, in the auditor's distribution of the proceeds, have his claim against the corp- oration applied in payment of his indebtedness upon subscriptions to the stock. 4. Miacellwuieous, Injunction to protect corporation from execution. — Gravenstine's Ap- .peal, 1865, 13 Wr., 310. It seems that a stockholder may have an injunc- tion for the protection of the corporation against execution where the direct- or have acted ultra vires or where they have been guilty of fraud or collu- sion with any of the company's creditors by which its other creditors or stockholders would be defrauded. But a consenting stockholder cannot so interfere where the debt has been created with the assent of all the stock- hoId,ers as well as the directors, and judgment confessed for it by the same authority. Obtaining possession of lands sold— Act of 1836. — Oakland Bailway Co. V. Keenan, 1867, 6 Sm., 198. The provisions of the Act of 1836 for ob- taining possession of real estate sold at sheriff's sale apply to proceedings against the lands of corporations. The Act applies to executions against solvent cori)OTations in the same manner as it applies to executions against individuals. Stay. — Boyer v. Northern Central Railroad Co., 1857, C. P., Dauphin, 1 Pear., 113. A corporation cannot have a stay of execution. Harrisburg & Potomac E. Co. v. Peffer, 1877, 3 Nor., 295. A corporation is not entitled to a stay of execution under the Act of June 16, 1836, Sec. 3, upon a judgment for damages for land taken under the power of eminent do- main. Interpleader— Security for costs— Foreign corporation. — Manhattan Co. V. Granley, 1882, C. P., 11 "W. N. C, 255. A foreign corporation which is the defendant in an issue on a sheriff's interpleader will not be compelled to give security for costs. Dissolution— Receiver— Setting aside execution.— Fraley v. Ins. Co., 1874, 9 Phila., 219, 31 L. Int., 356. Where an attachment is issued against a corporation and judgment obtained on it, but prior to such judgment the corporation has been dissolved and a receiver appointed, the judgment and execution thereon will be set aside and the property given to the receiver. What passes to purchaser. — Comm. v. Pennsylvania & Western Rail- road Co., 1884, 41 L. Int., 448. A sale of the property and franchises of a corporation upon a,fi. fa., under the Act of April 7, 1870, passes to the par- chaser the essential franchise, the right to be a corporation. Hogg's Appeal, 1878, 7 Nor., 195. A sheriff's sale of the property and franchises of a corporation does not vest in the purchaser the anx>aid stock subscriptions, or other choses in action, of the company . "Nulla bona "—Bill in equity for Impaid subscriptions— Parties.— Cornell's Appeal, 1886, 18 W. N. C, 289, 44 L. Int., 37. A creditor of an insolvent corporation whose execution against the latter has been returned " Nulla bona " may maintain a bill in equity against stockholders to compel payment of unpaid subscriptions without having filed it on behalf of all the Part X] EXECUTION. 207 corporation's creditors, the other creditors not having availed themselves of their right to be made co-complainants, and without having made co-defend- ants all the stockholders vfho have not paid theirs ubscriptions. See Stock and Stockholders' Subscription. Same — Bill to compel refunding of proceeds of corporate property. — Bickley v. Paul, C. P.. 1875, 2 W. N. C, 301, 11 Phila., 256, 33 L. Int., 22, 8 Leg. Gaz., 2i. After a return of Nulla bona to an execution upon a judgr ment against a corporation, the judgment creditor may file a bill iu equity to compel the stockholders to proportionately refund the amount received by them from the proceeds of a sale of the corporate property, or so much thereof as may be necessary to pay the complainant's debt. But the corp- oration must be added as a party defendant. Execution against land taken under right of eminent domain- Precedence of easement over lien of judgment.— Dean v. Kulp, 1870, 7 Phila., 650, 27 L. Int., 61. The plaintiff in an execution against land, a right of way over which the owner released to a railroad company under the Act of 1849 upon payment of compensation, takes the land subject to the company's easement notwithstaqding that the judgment upod which execu- tion issued was a lien upon the ladd before such release. Sci. fa. upon judgment for land damages— Abandonment of loca- tion.— Potter V. Pittsburgh Southern E. Ck)., 1886, 43 L. Int., 298, 33 Pitts. L. J., 289, 17 "W. N. C, 40. On a aci. fa. q. e. n. upon a judgment against a corporation for damages in taking the plaintifi's land, an affidavit of defence alleging that the defendants are the successors, by purchase at a judicial sale, of the company against which the judgment was obtained, and that they had abandoned the proposed right of way and never taken or in any manner interfered with the plaintiff's land, is sufficient. Service. — State Insurance Co. v. The Oglesby, 1859, C. P., Dauphin, 1 Pear., 152. An attachment-execution cannot be served upon a mere agent of a corporation, who might be served in a suit against the corporation for a debt due by it, unless such agent has the money due the principal defendant actually in his hands. The service must be made on the president, treasurer or other officer holding the funds. See, as to attachment generally, Attachment. II> Ag^ainst Individuals. Corporate stock.— Bonaffon v. Canal Co., 1860, C. P., 4 Phila., 29, 17 L. Int., 52. Stock standing in a defendant's own name may either be seized upon a,fi.fa. or attached in the hands of the corporation. Same — Stock assigned to corporation as collateral. — Early's Appeal, 1879, 8 Nor., 411. Stock of a corporation assigned to the corporation itself as collateral security for a loan cannot be sold under an execution against the assignor. See also Eby v. Guest, 1880, 13 Nor., 160. Same — Assignment of, not noted on corporate books. — Oerther v. Minereville Bank, 1877, C. P., Schuylkill, 1 Schuylk. Leg. Eec., 69. Trans- fers of corporate stock which have not been entered on the books of the corp- oration are valid as against creditors of the assignor and cannot be taken by them in execution. Non-compliance with a charter provision that all trans- fers must be entered ujjon the books of the company does not affect this rule. Such provisions are solely for the benefit of the corporation. Same— Corporation's lien for holder's debt— Subrogation of other creditors. — Ramsay's Api)eal, 1834, 2 Wts., 228. A corporation holding a first judgment against one of its stockholders, upon whose stock the claim of the corporation is a lien, is entitled, upon a sale of the debtor's property, to be paid the entire amount of its judgment from the proceeds ; but the other creditors are entitled to be thereupon subrogated to the rights of the corporation so that they may levy up 17 L. Int., 365. If a stock- holder wishes to complain that a part of the purchase price of the company's stock sold hy itself was paid in the vendee's honds instead of in cash, he should complain within six years after the consummation of the sale. Spering V. Smith, 1868, 6 Phila., 524, 25 L. Int., 148. The liahility of a director for gross negligence is barred in equity by the lapse of time, in analogy with the statute of limitations. Affirmed : 21 Sm., 11. Kimmell v. Gefeting, t853, 2 Gr.,- 125. Where directors of a corporation have divided among themselves stock purchased by one of their number under a resolution of the board which contemplated that the purchase should be for the benefit of all the stockholders, a transfer of the stock on the books to the directors and the directors' voting such stock at the corporate elections constitute a sufficient means whereby the stockholders might discover the fraud. Therefore a §tockhold^ who has neglected for a period of six years after such possibility of discovery to seek redress for such fraud is debarred from bringing an action on the case against the directors for conspiracy. Evans' Appeal, 1876, 31 Sm., 278. A bill by stockholders to compel direct- ors to account for profits made by them illegaily hy a sale of land to the corp- oration, will not be sustained when the stockholders, after gaining full knowledge of such illegal prpfit, delayed moving for relief for an unreason- able length of time ; which may loe a less period than six years. Where the relief prayed is that the defendants pay the profits etc. to the corporation, the relief is sought through the equitable rights of the corporation, and the knowledge and conduct of the corporation will be considered in determin- ing the question of laches : affirming 1 W. N. C, 127. Failure of ecLuitable owner of stock to demand transfer.— Whetham V. Penna. & New York Canal & Railroad Co., 1873, 30 L. Int., 76. A bill in equity against a corporation for stock by a holder whose title is in equity by as-'ignment of certificate is barred by complainant's delay for ten years to demand a transfer. Laches of owner of land entered upon by corporation— Ii^unction. —Seal V. Northern Central E. Co., 1868, C. P., Dauphin, 1 Pear., 547, 2 Leg. Gaz., 182. An injunction will not be granted to restrain a corporation from continuing to use land taken by it without paying or securing compensation, especially where the use has been long continued and the land-owner has been guilty of laches. The remedy is by ejectment. Irregular execution against corporation— Setting aside.— Lusk's Ap- peal, 1884, 12 Out., 152. The sale of a corporation's property and fran- chises under an ordinary^, fa., without objection, will not be set aside be- cause of such irregularity in a collateral proceeding several years after the confirmation of the sale. Power of corporations to hold, see Powers of Corporations. Mortgage of, see Mortgage. Taxation of, see Taxation- Taking of, under right of eminent domain, damages etc., see Eminent Domain. Devise of, see Devise. Sale of, by agents, directors etc. to corporation, see Directors, III, Fraud, Trust and Trustee. Constructive notice of conveyance of , to corporation, see Notice. LiabUity to assessment of benefits by opening of street, see Roads and Highways. 250 LAND COMPAKY— LEASE. [Parti. LAXD COMPANY. Preferred stock of, see Preferred Stock. I^AXDLORD AKD TENANT. See Lease, Eminent Domain. LATENT AMBIGriTV. See Evidence. LA^r AND PACT. Questions of, see Trial. LEASE. Entry by corporations upon leased land, see Eminent Domain, IV, 1. Guaraviy by corporation of interest on bonds of leased corporation, see Bonds. Of cars, to railway company, liability of lessor to taxation, see Taxation. Coiporation's lease of its franchises— Alienation.— Wood v. Bedford &c. E. Co., 1871, 8 Phila., 94, 28 L. Int., 53. A corporation has no imwer to lease its franchises unless specially authorized to do so by law. See also Pittsbgh & Connellsville E. Co. v. Bedford &c. E. Co., 1871, 32 Sm., 104. Philadelphia «. Western Union Telegraph Co., 1876, C. P., 2 W. N. C, 455. In the absence of special legislative authority a corporation has no power to. lease its franchises. An authority to lease its property does not give such a right. Cass V. Manchester Iron & Steel Co., 1881, 17. S. C. C, W. D. Penna., 29 Pitts. L. J., 210. A corporation chartered for manufacturing puriwses under the Act of 1874 has no power to lease its "plant " and thereby relinquish the exercise of its franchises to others. Martin v. Continental Passenger Eailway Co., 1880, C. P., 37 L. Int., 132, 2 Schuylk. Leg. Eec, 233. A majority of the board of directors of a corp- oration cannot put the works of the company beyond the control of the stockholders by selling or leading them without the stockholders' consent. The rule is not altered by the fact that the directors control a majority of the shares. Lease for benefit of creditors.— Ardesco Oil Co. v. North American Oil & Mining Co., 1870, 16 Sm., 375. The directors of an insolvent corporar tiou have power to lease the entire property of the corporation for the benefit of the corporation's creditors. Lease involving forfeiture.— Wilmington & Reading E. Co. v. Berks County E. Co., 1878, 6 W. N. C, 115. A contract by a railroad company to complete its road and lease a part of it to another railroad company and pay Part J.] LEASE 251 the principal and interest of its first mortgage bonds when due, and that upon default etc., the other company shall take possession of its road and operate it until the first company obtains a release of the mortgage from the portion of its road leased to the second etc., Jield to be ultra vires and void as providing for a forfeiture, if not absolute, so indefinite in character as not to be computable. Lease executed at irregular meeting without notice .—Kersey Oil Co. V. Oil Creek &c. Eailroad Co., 1877, C. P., 5 W. N. C, 144, 12 Phila., 374, 34 L. Int., 362. Directors of a corporation have no power to execute a lease of the property of the corporation directed at a meeting not called in accord- ance with the charter and by-laws, and without notice to all the directors and stockholders. Long lease not an assignment for creditors.— Gratz v. Pennsylvania Railroad Co. , 1862, 5 "Wr. , 447. A lease of a railroad for a term of nine hun- dred and ninety-nine years, reserving rent which is payable wholly to the lessors or in relief of the demised property from taxes and mortgages, is not an assignment for the benefit of creditors. Lessee corporation's rigbts and liabilities. — Pennsylvania Railroad Co. 1). Sly, 1870, 15 Sm., 205. "When a corporation leases the property of an- other corporation, the regulations in the charter of the lessor govern in the lessee's use of such property. The lessee is restricted by the same limita- tions and entitled to the same privileges as was the lessor. See also Mullen V. Phila. Traction Co., 1887, C. P., 20 W. N. C, 203. Comm. V. Penna. R. Co., 1888, 20 "W. N. C, 448, 45 L. Int., 85. A corp- oration which is the lessee of the works of another corporation incurs the ob- ligations of the lessor with respect to the relocation and reconstruction of highways occupied nnder the power of eminent domain, and is likewise lia- ble to indictment for causing a nuisance by the neglect of such duty : 2 C. C. R.. 391. Mullen V. Phila. Traction Co., 1887, C. P., 20 W. N. C, 203. Where a corporation is nnder a statutory duty to the public to keep a highway in re- pair, a corporation which becomes the lessee of its property and franchises is nnder the same obligation although such obligation be not imposed by the terms of its own charter. And an action may be maintained against the lessee by a private citizen who has sustained injuries by reason of the company's neglect of such duty. Same — Exercise of lessor's power of eminent domain. — Hespenheide's Appeal, 1884, 4 Penny., 71. A corporation possessing the power of eminent domain may exercise it in altering or enlarging the works of another corp- oration whose works it has leased. Lewis V. Germantown, Norristown & Phoenixville R. Co., 1881, C. P., Montgomery, 16 Phila., 608, 39 L. Int., 13. The lessees of the rights and property of a corporation cannot of their own motion exercise the right of eminent domain of the lessor corporation vested in the latter but unexercised by it at the time of the demise ; nor can receivers of the lessee corporation. When a statute prescribes what powers shall pass by such a lease, no others can be otherwise conferred. Liability to taxation not affected by lease.— Atlantic & Ohio Telegraph Co. V. Comm., 1870, 16 Sm., 57. The tax upon corporation dividends is to be computed upon the basis of the return of the treasurer to the Auditor- General. The Commonwealth is not affected in any way by any contract relations between the corporation and a lessee of its works. Lessee entitled to lessor's exemption from taxation.— Northumber- land County V. Phila. & Erie E. Co., 1887, 20 W. N. C, 381. A lessee corp- oration is entitled to the same exemption from the taxation of the leased works essential to the exercise of the corporate franchises as was its lessor. Act of April 24, 1874— Mining of coal under lease.— Big Black Creek Improvement Co. v. Comm., 1880, 13 Nor., 450. The Act of April 24, 1874 (P. li., 71) includes within its provisions corporations which cause coal in 252 LEASE — LEGISLATUBB. [PaW 1. their own lands to be mined under a lease, although their charters expressly prohibit them from mining. Mortgaging of leaseholds. — Lewis v. Philadelphia Axle Works, 1875, C. P. 1 W. N. C, 327. Corporations are within the purview of the Act of April' 27, 1855 (P. L., 140)' authorizing the mortgaging of leaseholds. Lease of ofSce in Penna. by foreign corporation.— Steamboat Co. ».• McCutcheon, 1850, 1 H. ; 12. The lease of an office in Pennsylvania by a foreign corporation for the transaction of its business is not an unlicensed holding of land ; it is valid. To contract for the lease of an office in Pennsylvania for the transaction of the business of a foreign corporation is within the scope of the ordinary au- thority of the president of such corporation. Directors' power to remit rent.^— Fareira «. Eiter, 1881, 15 Phila., 58, 38 L. Int., 450. Where the powers conferred upon the board of managers of an incorporated theatre company are to manage the business of the asso- ciation, to lease the theatre with the approval of a majortty of the stock- holders, to do all other things necessary for the same, and also all other powers for the recovery of the rent which may become due, and which the interest of the stockholders and the purposes of the association may require, the managers possess power to remit rent, if the purposes of the association require it. Notice to corporation's tenant to ctuit.— Wolf v. Groddard, 1840, 9 Wts:, 544. The authority of the agent of a corporation to give notice to its ten- ant to quit possession need not be under seal. Bight of way over leased mines— Breach of covenant to change loca- tion.— Mine Hill & Schuylkill Haven R. Co. v. Lippincott, 1878, 5 Nor., 468. Where a corporation has a right of way over mining lands, and covenants with the owner thereof that upon notice it will change its location, or per- mit the coal underneath the way to be mined, a tenant of such owner, the terms of whose lease give him the right to mine all the coal in the land de- mised, may sue in the name of the landlord for the breach of such covenant : affirming 3 Leg. Chron., 337. LEASEHOLD. See Lease. LrEGACV. LEGAL IKXELLIGEXCER. Adverlisemeni in, of application for charter, see Publication. LEGISLAX1JRE. Powers of in alteration or repeat of charters, see Charter. Power to judge of facts warranting forfeiture of charter, see Id, Part 7.] LEW — LIABILITIES AND DUTIES OF COEPOEATIONS. 253 LEVY. See Execution. JJSX. L,OCI. See Foreign Corporations. LIABILITY. Of stockholders, see Stock and Stockholders. Of agents, directors' and officers of corporations, see Agency, Directors, Officers. After dissolution, see Dissolution. LIABILITIES X^n DUTIES OF CORPORA- TIONS. Enforceability of duties by mandamus, see Mandamus. Strict construction of charters, see Charter. Liability to provisions of new State Constitution or of statutes passed subsequently to incorporation, see Constitutional Law. The inclusion of corporations within the ineaning of statutes, see Statutes. Liability to taxation, see Taxation. Liability upon contracts, in general, see Contracts ; for acts of agents, officers and directors, see Agency, Officers, Directors, Negligence. Liability to penalties, see Penalties. With respect to stock, see Stock and Stockholders, Subscription. Under lease of property of another corporation, see Lease. Chargeability with notice, see Notice. Grant of ^ower implying corresponding imperative duty— Liability of corporation to perform con>orate duty without discrimination.— Susquehanna Boom Co. v. Dubois, 1868, 8 Sm., 182. A corporation is not entitled to avail itself of a legislative grant without assuming the duty which is its consideration. Comm. V. Wilkesbarre Gas Co., 1883, C. P., Luzerne, 2 Kulp, 499, 12 Luz. Leg. Beg., 385. SVhere a statute confers upon a corporation a power to be exercised for the public good, the exercise of the power is not discretionary but imperative. A grant to a private corporation of a practically exclusive privilege to supply the inhabitants of a particular town with ilJuminating gas implies a duty also and a corresponding right in any such inhabitant, upon compliance with all reasonable regulations and conditions, to be sup- plied by the corporation with gas, although the grant be unaccompanied with any mandatory words. 254 LIABILITIES AND DUTIES OF COEPOBATIONS. [Part I. Bell Telephone C!o. i). Comm., 1886, 17 W. N. C, 505, A corporation hav- ing a public duty to perform in supplying the public -with a necessity (such as telephonic communication) is bound to perform such duty indiscriminately for all who apply for it and -who comply with the generally prescribed terms ; and will be compelled so to perform such duty 'bj mandamus: affirmc ing 42 L. Int., 500. Stadford V. Eailroad Co., 1855, 12 H., 378. A corporation upon which is imposed a public duty must peiform that duty impartially for every mem- ber of the public, upon compliance with the customary terms. It cannot contract to perform such duty exclusively for one or more individuals or corporations. Sterrett v. Philadelphia Local Telegraph Co., 1886, C. P., 43 L. Int., 291. A corporation which engages in the performance of services which it is not obliged or authorized to perform by its charter cannot be compelled to per- form them for anyone who applies under the specified conditions. Condition of grant of power to collect tolls— Improvement of river. — Carman v. Navigation Co., 1876, 32 Sm., 412. Where an improvement company is authorized to collect tolls on a river "as soon as twenty miles are improved," the condition is performed when improvements are made in good faith, whereby the dangers of navigation are lessened, although the discretion of the directors has not dictated as extensive improvements in the particular part of the river specified as might advantageously have been made. Iqimiction to restrain neglect of corporate duty. — Buck Mountain Coal Co. v. Lehigh Coal & Navigation Co., 1865, 14 Wr., 91. A private party cannot have an injunction to restrain a corporation from neglecting to per- form its public duties, in the absence of any special right or authority in such private party, or of a special injury to such party flowing from such neglect. Statutory remedy to compel performance of corporate duty— When not repealed. — Lackawaxen Turnpike Co. v. Comm., 1848, 9 B., 20. Pro- ceedings to compel a corporation to perform a corpoi'ate duty the form of which is prescribed in the charter by reference to another act of Assembly, are not affected by the repeal of the statute referred to ; nor by the repeal of the charter provisions as to such proceedings by an act of Assembly passed after the perfecting of the proceedings under the old form. See Mandamus. Indictment for breach of duty— Nuisance.— Pittsburg, Virginia & Charleston Bailway Co. v, Comm., 1882, 5 Out., 192. A corporation may be indicted for a breach of a duty imposed on it by law, e.g., for a i^Uure to reconstruct a highway, thereby creating a nuisance. See also Delaware Division Canal Co. v. Comm., 1869, 10 Sm., 367; North- em Central K. Co. v. Comm., 1879, 9 Nor., 300. See cases infra, and Nui- sance. Comm. V. Penna." E. Co., 1888, 20 "W. N. C, 448, 45 L. Int., 85. A corp- oration is liable to indictment for causing a nuisance in the obstruction of a highway by failing within a reasonable time to perform the duty of properly relocating and reconstructing it. A corporation leasing the works is under the same duty and subject to the same liability : reversing 12 C. C. E., 391. Evidence to disprove corporation's liability. — Meighen v. The Bank, 1855, 1 C, 288. Evidence of the customs and usages of a corporation, al- though not competent of itself to disprove a liability of the corporation, is admissible in explanation or corroboration of a fact alreardy in evidence. Liability to municipal regulation.*— Frankford &c. Eailway Co. v. Phil- adelphia, 1868, 8 Sm., 119. Corporations chartered to carry on business in * As to municipal rei^ulation of special classes of corporations, see Fart 11, Private Corporations In their Belations with Municipalities. Part /.] UABItlTIKS AND DUTIES OF CORPOEATIONS. 255 a city are to be regarded as inhabitants of the city, and, unless specially ex- empted, aresubiect to its ordinances. Philadelphia v. Western Union Telegraph Co., 1876, C. P., 2 W. N. C, 455, 11 Phila., 327, 33 L. Int., 129. All grants of power to private corpora- tions to (larry on business \\-ithin the limits of a municipal corporation are made upon the implied condition that such business shall be subject to all reasonable regulations the municipality may make. West Phila. Passenger Ewy. Co. v. Phila., 1873, 30 L. Int., 256. Munici- pal regulation of corporations must be reasonable. West Philadelphia Passenger Eailway Co. v. Dougherty, 1876, C. P., 3 W. N. C, 62. A municipality cannot by ordinance grant any privilege vphich substantially impairs the vested rights of private corporations lawfully using its streets. Pittsburgh's Appeal, 1887, 5 Am., 4. That a portion of a municipal ord- inance is invalid in imposing conditions upon a corporation to which the ordinance grants authority to enter on the streets of the city does not inval- idate the grant itself. Liability of corporate property to assessment of benefits by open- ing of street. — Berks Street, 1882, 12 W. N. C, 10. Land of a corporation upon which are erected the stations, shops etc., necessary to the enjoy- ment of its franchises is liable to assessment for the benefits thereto arising from the opening of streets. Liability of successor by purchase to rights and property of corp- oration.— WeUsborough&c Plank Road Co. v. GrifSn, 1868, 7 Sm., 417. A successor by purchase to the rights and property of a corporation, not under the Act of April 8, 1861, is a distinct person, notwithstsnding an act of As- sembly providing that upon such sale the rights and franchises of the corp- oration should be as fully vested in the purchaser or purchasers as if he or they had been the original corporators, and that from thenceforth all the provisions of the act of incorporation, with the corporate powers conferred and the several laws of the Commonwealth in relation thereto, should be for the benefit of the said purchaser or purchasers. An action, therefore, can- not be maintained against the corporation for injuries resulting after such a sale from, the purchaser's neglect to keep the former works of the company in proper repair. Stewart's Appeal, 1872, 22 Sm., 291. Where the purchasers at a fore- closure sale of the property of a corporation become, by virtue of a special statutory provision, a corporation, they do not become liable for the debts of the original corporation. Such liability is not imposed by an agreement made by the stockholders in the original corporation, subaeguenMy to the pur- chase to become stockholders in the new corporation without the payment of any money, Liability atfter consolidation— Debts due to Commonwealth.— Buf- falo & Erie R. Co. v. Comm., 1871, 3 Brewst, 374. Where two corporations are consolidated a debt due by one of the original companies to the- State may be settled by the Auditor General against the new companies. The set- tlement is not vitiated by naming both the companies as debtors : affirming 2 Pear., 376. 42^«»€d .• 15 WaU., 284. See Consolidation. Duty to repair public roads and bridges— Liability for neglect.— Pennsylvania & Ohio Canal Co. v. Graham, 1870, 13 Sm., 290. A corpora^ tiou which is required by itscharter to keep in repair a public road or bridge, although thereby contracting with the State, is bound to maintain such a road or bridge in good repair for the benefit of any person using it, and is liable in damages to any such person for special injuries iiiflicted by the lack of such repair. Such a charter imposes a duty to the whole public, for the breach of which any member of the public suffering thereby special mjury mav maintain an action on the case. See also Oil City & Petroleum Bridge & Son, 1886, 4 Am., 321; Mullen v. Phila. Traction Co., 1887, SOW. N. C, 203, and cases imfm. 256 LIABILITIES AND DUTIES, OF COEPOKATIOSS. [Part I. f Liability of purchasers of State Works.— Erie ». Erie Canal Co., 1868, 9 Sm., 174. Where the State has granted a public work to a corporation, the grantee is discharged from those duties to the public growing out of the ■work which the State had performed before the grant, unless there are ex- press words in it imposing them upon the corporation — as in the case of the Pennsylvania Eailroad Co. v. Duquesne Borough, 1863, 10 Wr., 223. A sub- sequent imposition of such a duty is unconstitutional. Comm. V. Pennsylvania Canal Co., 1870, 16 Sm., 41. The purchasers of the State Works under the Act of 1857 were authorized by that Act to resell or lease portions of the Works to other corporations created after the passage of the Act ; and the latter took the Works with the immunities of the origi- nal purchasers. Beaver Falls Water Power Co. v. Wilson, 1876, 2 Nor., 83. Where a right in the nature of an easement ui)on a portion of the Public Works of the State is acquired by an individual by a contract with the State through its agents, and the works are sold by the State to a corporation, the latter, or a purchaser of its property (without its franchises) at a judicial sale, takes the property subject to the easement ; and while not bound to main- tain the Works in such a condition as to preserve the value of the right, such purchaser cannot do any positive act intended to defeat or destroy the right. Comm. V. Pennsylvania Canal Co., 1870, 16 Sm., 41. The State cannot impose upon a grantee of the purchasers of the Public Works a burden not contained in the stipulations of the original sale. Williamsport & Elmira Canal Co. v. Comm., 1859, 9 C, 288. The pur- chasers of the State Canals took them subject to the obligation of the State, by virtue of a prior contract, to pay all tolls collected at a certain point to a private corporation. Pennsylvania E. Co. v. Duquesne Borough, 1863, 10 Wr., 223. The pur- chasers of the State Works are bound to rebuild a bridge, necessary to the public, e.g. one on a public highway oyer a canal, which had been erected by the State but which lias fallen down since the purchase. Such duty passed at the purchase although the State could not have been compelled to perform it. Upon a refusal by the corporation to rebuild, on notice from the proper public officers, the latter may do so and recover the cost &om the corpora- tion in an action of assumpsit. See also Johnson v. Penna. E. Co., 1877, C. P., Chester, 2 Chest. Co., 315. Comm. 1). Pennsylvania Eailroad Co., 1865, 1 Sm., 351. Although the means of enforcing the performance of their duties by the purchasers of the State Canals ?ire greater than those which could be employed against the State, the obligations and liabilities of the purchasers are no greater than those which rested on the Commonwealth. See also Delaware Division Canal Co. v. McKeen, 1866, 2 Sm., 117; Freeland v. Penna. E. Co., 1870, 16 Sm., 91. McKeen v. Delaware Division Oanal Co., 1865, 13 Wr., 424. The grantees of the State Canals took under the grant the Commonwealth's right to main- tain feeding dams npon navigable rivers, and are not liable to consequential damages for the exercise of such right. As to liability of State's vendees to pay consequential damages, see Emi- nent Domain. Liability for negligence of independent contractor— Duty to keep works in repair.— Edmondson v. Pittsburgh, McKeesport & Yonghiogheny Eailroad Co., 1886, 17 W. N. C, 46. The rule that aperson is not liable for damages resulting from the negligence of one employed by him as an inde- pendent contractor applies to corporations possessing the right of eminent domain. Such liability is not imposed by Section 8, Article XVI, of the Constitution. Neither would that Section apply where a corporation is con stmcting its works upon land purchased by it and not taken under the right of eminent domain. Ehoads v. Lancaster Ave. Improvement Co., 1886, C. P., Montgomery, 17 Part Z] LTABILITTES AND DUTIES OF COEPOEATIONS — LIEN. 257 "W. N. C.,_125, 1 Montgom. Co., 181. A contractor who merely performs for a corporation certain work at so much per unit of work, and under the direc- tion and control of an officer of the corjMjration, is not such an indenendent contractor as that his negligence will not render the corporation Uaible. A corporation which is vested with its charter rights upon the inherent condi- tion of keeping its works fit for the safe use of the puhlic cannot divest itself of its responsibility by transferring the performance of its duties to a private individual : Affirmed: 1 Crnm., 377. Chartiers Valley Gas Co. v. Lynch, 1888, 21 "W. N. C, 44, 45 L. Int., 106. A corporation which has not accepted and assumed control of work done by its independent contractor is not liable for injuries caused by the contractor's negligence whereby the works of other companies are rendered dangerous and an accident caused. Comm. V. Myers, 1885, C. P.. Lancaster, 2 Lane. Law Rev., 129. A turn- pike company which is required by law to keep a bridge in repair is not thereby required to rebuild it when it is destroyed by fire. See Koads and Highways. Same — Contract to assign perfonnance of corporate duties. — Snow V. Deerfield, 1875, 28 Sm., 181. -"A corporation to which has been granted a portion of the State's right of eminent domain cannot assign by contract the performance of any of the duties made incident to its exercise. Same— Abandonment of property— Abandoning company's liabil- ity. — ^Fredericks v. Penna. Canal Co., 1883, C. P., Lycoming, 40 L. Int., 24, 16 Phila., 605, 33 Pitts. L. J., 117. A corporation which has lawfully aban- doned its works cannot be held liable for damages resulting from the non- repair of the latter by reason of having made certain repairs subsequently to such abandonment ; it cannot either assume the control or incur the liabili- ties which existed before abandonment. Affirmed: 13 Out., 50. Same — Liability of subsequently appropriating company.— Clay & Hinkletown Turnpike Co., 1884, Q. S., Lancaster, 1 Lane. Law Rev., 361. Where property has been so abandoned and is afterward appropriated by a second company under the right of eminent domain, the second company is not under any of the obligations, with respect to such property, imposed upon the first by its charter. Such an obligation could be enforced only against the original company or a party succeeding to its corporate rights and liabilities by a sale or lease of its works. IvICB^ISE. Office license, see Foreign Corporations, Taxation. To corporation to enter upon land, see Eminent Domain. To hold land, see Powers of Corporations. Supplement to charter as a mere license, see Constitutional Law. LIEN. Of attachment, execution, judgment, mortgage, see those heads. Landowner's claim for damages against successor of appropriating company, see Eminent Domain, IV, 2. Coraoration's lien upon stock for holder's indebtedness— Common law lien.— Merchants' Bank v. Shouse, 1883, 14 W. N. C, 133, 40 L. Int., 17 — MUBPHY. 258 LIEN. [Part /. 326. Corporations have no common law lien upon their stock for the amount of debts due them by the holders. See also Steamship Dock Co. v. Heron, 1866, 2 Sm., 280. Same — Resolution prohibiting transfer of stock— Retroactive effect. — Steamship Dock Co. v. Heron, 1866, 2 Sm., 280. A resolution of a board of directors prohibiting a transfer of stock by anyone indebted to the corpor- ation cannot be given a retroactive effect. Same — Authority to make by-law creating lien. — Geyer v. Insurance Co., 1867, D. C, Allegheny, 3 Crum., 41, 14 Pitts. L. J., 266. A charter provision that the company's stock shall be assignable and transferable on the books of the company " according to such rules and by-laws and subject to such restrictions and limitations as the stockholders may establish " is sufficient authority for a by-law providing that no such transfer shall be permitted while the owner of the stock is indebted to the company. Such a by-law does not require express authorization in the charter. Same — ^As against whom, valid. — Morgan v. Bank of North America, 1822, 8 S. & K., 73. A by-law or a usage of a corporation forbidding the transfer of stock by a holder indebted to the corporation is valid as against a stockholder to whom such a usage was known and against his voluntary as- signee for creditors. Same — Corporation not entitled to sell the stock. — ^Tete v. The Bank, 1869, C. P., 26 L. Int., 157. A corporation which is entitled by its charter and by-laws to prohibit the transfer of its stock while the holder is indebted to it, is entitled to a lien on the stock and to prevent its transfer, but it is not by virtue of such provision entitled to sell it. Same— Debtor's surety— Lien cannot be shifted to protect different debt. — Kuhns V. Westmoreland Bank, 1833, 2 Wts., 136. A corporation's lien upon its stock inures to the benefit of the debtor's surety, and cannot he shifted by the bank for the protection of a difterent debt than that for which the surety bound himself. Same— Debt barred by statute of limitations— Indebtedness of firm. — Geyer v. Insurance Co., 1867, D. C, Allegheny, 3 Crum., 41, 14 Pitts. L. J., 266. Where a by-law provides that no stock shall be transferred on the books of the company while the owner is indebted to the company, the latter has by virtue of such by-law a lien on such stock, and may refuse to permit a transfer thereof until the debt is discharged. This lien is not lost when the debt is barred by the statute of limitations. Indebtedness to the company by a firm of which the owner of the stock is a member, gives the corporation the right of lien. Same— Judgment against debtor stockholder— Subrogation of other creditors. — Eamsey's Appeal, 1834, 2 Wts., 228. A corporation holding a first judgment against one of its stockholders, upon whose stock the claim of the corporation is a lien, is entitled, upon a sale of the debtor's property, to be paid the entire amount of its judgment from the proceeds ; but the other creditors are entitled to be thereupon subrogated to the rights of the corpor- ation so that they may levy upon and sell the stock. Same— When lien cannot be claimed for debt of one of several lega- tees of stock. — Presbyterian Congregation v. Carlisle Bank, 1847, 5 B., 345. Where a testator has bequeathed forty shares of bank stock to four persons in equal shares, and the bank has permitted a transfer by three of the lega- tees of thirty of the shares, it cannot afterward, upon the attainment of ma- jority by the fourth legatee, refuse to permit a transfer by him of the re- maining ten shares, on the ground of the indebtedness to the bank of two of the three other legatees. The permission of the bank that three-fourths of the stock should be so assigned was an assent by it to the severance of the title of the fourth legatee and notice that the remaining shares were his sole property. In an action against the bank for a refusal to permit such transfer it is error to reject evidence of an agreement between the legatees and the execu- Part /.] LIEN — LIMITATIONS. 259 tor that the stock should be divided, the thirty shares so transferred and the remaining ten retained for the fourth legatee until majority. Same— Indebtedness of president who lias fraudulently over-issued stock.— Mount Holly Paper Company's Appeal, 1882, 12 W. N. C, 228, 39 L. Int., 312. Where the stock fraudulently over-issued by the president of a corporation stands in his name, and he is indebted to the corporation, a lavr providing that no certificate should be transferred so long as the holder thereof was indebted to the company, operates to deprive the transferrees of the fraudulent certificates of any recourse against the company, where they ■ have not taken the precaution to have the shares transterred upon the book of the company, or attempted to have such a tranfer. Where such a transfer is demanded,' and an action for a refusal is brought, the indebtedness of the president is a valid defence, even if the certificates be valid. A fortiori it is a valid defence when the certificates are fraudulent. See also People's Bank v. Kurtz, 1882, 3 Out., 344. Mechanics' lien— What corporations, and what corporate property subect to,— Foster v. Fowler, 1868, 10 Sm., 27. The works essential to carrying on the operations of a qjjasi-pnblic corporation, such as a company for supplying a town with water, are not subject to a mechanics' lien. Evans i;. Railroad Co., D. C, 11 Pitts. L. J., 4, 3 Luz. Leg. Obs., 260. Property of a quasi-public corporation necessary to the exercise of its fran- chises, e.g., the depot of a railroad company, cannot be the subject of a me- chanic's lien. Girard Point Storage Co. v. Southwark Foundry Co., 1884, 9 Out., 248. A company incorporated to transact a general storage and elevator business is not a public corporation, and the real estate used in the exercise of its fran- chises is not exempt from mechanics' liens : affirming 13 W. N. C, 503, 16 Phila., 193, 40 L. Int., 382. Caldwell v. American Rapid Telegraph Co., 1883, C. P., Chester, 2 Chester, 78. A mechanics' lien cannot be filed against a telegraph line extending across a county. I^IFE-I^EGAXEB. Of stock, see Principal and Income. LIFE-XENAKfX. Of land taken under right of eminent domain, see Eminent Domain, IV, 1. L,II!HIXAXIOXS. Upon power of corporation to hold land, see Powers of Corporations. Upon amount of land to be held by proposed corporation, or on yearly income, see Oreation of Corporations, III. Uponpowers of officers of corporations, see Contracts, Officers. lAmifaiion of right to atibscribe for stock, see Subscription. 260 LIMITATIONS, STATUTE OF, [Part I. LimiXATIOBIS, STATUTE OF, See also Laches. The running of the statute upon the contract of subscription— When the statute begins to run etc.— Bell's Appeal, 1887, 5 Am., 88, 18 W. N. C, 551, 44 L. Int., 27. The statute of limitations begins to run upon a contract of subscription from the date of the incorporation of the company. Pitts. & Connellsville Eailroad Co. v. Plummer, 1860, 1 Wr., 413. A written agreement to subscribe for certain stock does, not take effect as a con- tract until the document is delivered to the corporation. Sinkler v. Turnpike Co. , 1831, 3 P. & "W. , 149. Where the contract of sub- scription is, to pay the stock subscribed, " in such manner, at such times and in such proportions as shall be determined by the president and mana^ gers," the statute of limitations does not begin to run until such determina- tion and demand is made. Same — The bar of the statute — Call must he made within sis years. —Pittsburgh & Connellsville Eailroad Co. v. Byers, 1858, 8 C, 22. Although the statute of limitations does not begin to run against a subscription to the stock of a corporation until a demand is made for payment or for an instal- ment thereof, yet such call must be made within six years from the date of the subscription or the law will bar a recovery, in analogy to the statute. See also Pitta. & Connellsville E. Co. v. Graham, 1859, 12 C, 77. Shackamaxon Bank v. Disston, 1887, C. P., 44 L. Int., 274, 20 W. N. C, 297. The lapse of six years without the making of a call bars the corpora- tion's right of action for the unpaid subscription. Franklin Savings Bank v. Bridges, 1887, 20 W. N. C, 43. No suit can be brought by the assignee for creditors of a corporation to recover unpaid sub- scriptions after the lapse of six years from the date of the assignment with- out a call or assessment. Modem Life Ins. Co. v. Keller, 1887, C. P., Allegheny, 3 C. C. E., 118. A iona fide transferor of stock is not liable for the amount not paid thereon in an action brought more than six years after the last instalment was due, not- withstanding that, after the transfer and before the last instalment fell due, the corporation, being insolvent, made an agreement in fraud of its creditors, to which the defendant was in no way a party, to release unpaid subscrip- tions. Same — Condition as to piTosecution of corporate work. — ^Pitts. & Connellsville Eailroad Co. v. Uraham, 1859, 12 C, 77. The running of the statute of limitations against a corporation's right to enforce a contract of subscription is not affected by a condition in the contract that the work for which the corporation was created should be prosecuted ; to gain a right of action the corporation must perform the condition within six years. Same— Subscriber, when not estopped from pleading statute.— Pittsburgh & Connellsville Eailroad Co. v. Graham, 1859, 12 C, 77. A sub- scription to the stock of a cor^ration is an ordinary contract to sell and pur- chase, and affected by the incidents of such contracts. The subscriber does not become an integral part of the corporation so as to be affected by an im- plied assent to its acts, and is not estopped from pleading the statute of limitations to an action upon his subscription by the fact that after six years from the making of the subscription, he silently stood by while large expenditures were being made in prosecuting the work of the corporation. Stockholder's claim for dividends— Demand etc. — Phila. Wilm. & Bait. E. Co. V. Cowell, 1857, 4 C, 329. A corporation cannot set up the stat- ute of limitations against a stockholder's claim for dividends until a de- mand and refusal or a notice to the holder that his right to the dividends is denied. Part Z] LIMITATIONS, STATUTE OF, — LOAN. 261 Claim upon coupons of corporate bonds. — Philadelphia & Eeading Railroad Co. v. Fidelity Trust Co., 1884, 9 Out., 216. The six-year statute of limitations does not run against a claim for the amonnt due upon coupons of corporation bonds. See also Wain v. Huntingdon & Broad Top E. Co., 1883, C. P., 40 L. Int., 190. Statutory remedy for land damages. — Delaware, Lackawanna & West- ern E. Co. V. Bnrson, 1869, 11 Sm., 369. The statutory remedy for a corp- oration's entry upon land under the right of eminent domain is not barred by the statute of limitations : overruling Forster v. Cumberland Valley E. Co., 1854, 11 H., 371. See also McClintoni;. Pittsburgh, Ft. Wayne & Chi- cago R. Co., 1870, 16 Sm., 404. Suit for issuing " small notes "—Forfeitures.— Allegheny City v. Mc- Clurkan, 1850, 2 H., 81. A suit against a corporation for issuing small notes prohibited by the Act of April 12, 1828 is not subject to the provisions of the Act of Mar. 29, 1875, as to the time within which suits for the recovery of forfeitures njion any penal act of Assembly may be brought ; the 20 per cent, recoverable under the Act of 1828 upon judgment for the plaintiflf is not a forfeiture incurred by the act of issuing the notes. Suspension of running of statute against corporation— Act of April 25, 1850.— Shamokin Valley & Pottaville Railroad Co. v. Malone, 1877, 4 Nor., 25. A sheriff's sale upon a mortgage of the property of a corporation extinguishes the corporate existence so as to bring a claim against the com- pany within the provisions of the Act of April 25, 1850, Sec. 7 (P. L., 570), providing that the running of the statute of limitations shall be suspended in cases where a corporation defendant at the time of the accruing of the cause of action has "ceased from or suspended the ordinary business for which said corporation was created." Lien upon stock for debt barred by statute.— Geyer v. Insurance Co., 1867, D. C, Allegheny, 3 Crum., 41, 14 Pitts. L. J., 266. A corpora^ tion's lien ax>ou stock for the holder's debt is not lost when the debt is barred by the statute of limitations. Title under, to appropriated land— Review of viewers' decision upon,— Winebiddle v. Penna. E. Co., 1852, 2 Gr., 32. The Supreme Court will not review the action of viewers in deciding that one claiming dam- ages as owner of appropriated land under the statute of limitations had not been in possession for twenty-one years. The viewers may pass upon questions of title so far as to determine who are entitled to damages. LimiXED PARXPIERSXHP. See Partnership. LOAX. Stock assigned as collateral, see Assignment, II. Mortgage by corporation to secure, see Mortgage. Issue of preferred stock, see Preferred Stock. By seauestratorto corporation.— Beam's Appeal, 1852, 7 H., 453. If the sequestrator of a corporation's property advance his own money for the repair of snch property, he does so at his own risk ; but when his account. Including such advances, has been confirmed by the court, it will be pre- sumed that the court has sanctioned his action. 262 LOAN — MANAGEMENT. [Part f. ■ Beeler v. Turnpike Co., 1850, 2 H., 162. In an action by a corporation for earnings which accrued during sequestration the defendant cannot set off a loan by him to the company made before the sequestration. Stockholder's claim that voluntaiily paid assessments were a loan. — Bidwell V. Pittsburgh, Oakland & East Liberty E. Co., 1886, 44 L. Int., 60. Where all the stockholders of a corporation make voluntary contribu- tions to it by pro rata assessments, one of them cannot, after he has ceased to be a stockholder, recover such advance on the ground that it was a loan, al- though such a recovery had previously been allowed to another of the stock- holders. Stockholders' personal liability except for loans— Judgment— lai- peachment of, — ^Wilson v. Pittsburgh & Yioughiogheny Coal Co., 1862, 7 Wr., 424. When by the charter of a corporation the members are made per- sonally liable for all the debts of the corporation except loans, and after a judgment obtained against the corporation, the plaintiff therein issues a m.. fa. against the stockholders in order to have execution against them person- ally, the defendants cannot show that the judgment against the corporation was erroneous. Their only defences are that they are not stockholders or that the debt on which the judgment was obtained was a loan. Construction of special contract. — Union Canal Co. v. Antillo, 1842, 4 W. & S., 553. A certificateof loan from a corjioration construed convertible into stock by the holder before a certain date bntredeemable at anytime only by the corporation. IXICAXXOPI. Of corporate works, see Eminent Domain. Ah part of consideration, of contract of mbscriptum, see Subscription. ISAJORITV. See Internal Government. mALICIOVS PROSECITTIOX. Fenton v. Sewing Machine Co., 1874, D. C, 31 L. Int., 132, 9 Phila., 189. An action for malicious prosecution will lie against a corporation aggregate. The malicious prosecution is that of the corporation when it was originated and carried on by its chief officer in its behalf, with its knowledge, and for its benefit. No formal authorization of the prosecution is necessary to im- pose liability. inAi«AGEiniE;:«x. Of corporate action, see Internal Government, Directors. •Part /.] MANDAMUS. 268 To compel restoration to membership or to corporate office, see Disfranchisement, Amotion. Power of courts to issue to private corporations.— Comm. v. Keim, 1881, C. P., 15 Phila., 1, 38 L. Int., 32. The courts of common pleas have power under the Act of June 14, 1836, ? 18 (P. L., 626) to issue writs oiman- damtis to a private corporation. Mandamus is one of the remedial writs au- thority to issue which was given to the Supreme Court by the Act of 1722 and to the common pleas by the Act of 1836. To whom properly directed. — Comm. v. Keim, 1881, C. P., 15 Phila., 38 L. Int., 32. Mandamus issued against a private corporation is properly directed to and served upon those officers individually upon whom rests the obligation of performing the duty to be enforced. To enforce contract duties of corporations.— Comm. v. Wilkesbarre Gas Co., 1883, C. P., Luzerne, 2 Knlp, 499, 12 Luz. Leg. Eeg. 385. Duties of corporations springing out of contract relation cannot be eniforced by man- damna. To enforce collection of corporation's claims for benefit of creditor. Hays V. Lycoming Fire Ins. Co., 1881, 2 Out., 184. It seems that a creditor of a corporation cannot compel the officers thereof by mandamus to collect the notes, stock subscriptions and other assets due it in order to meet his de- mand. To enforce performance of public duties of corporations.— Bell Tel ephone Co. v. Comm., 1886, 17 W. N. C, 505. A corporation having a pub- lic duty to perform in supplying the public with a necessity (such as tele- phonic communication) is bound to perform such duty indiscriminately for all who apply for it and vrho comply with the generally prescribed terms ; and will be compelled so to perform such duty by mandamus : affirming 42 L. Int., 500. To compel trustees to affix corporate seal. — Comm. v. Trustees of St. Mary's Church, 1821, 6 S. & E., 506. A mandamus will not be granted upon the application of a majority of the members of a corporation to compel the board of trustees in whom the corporate rights are vested to affix the com- mon seal to alterations and amendments of the charter. To compel corporate election. — Comm. v. Keim, 1881, C. P., 15 Phila., 1, 38 L. Int., 32. Mandamus will issue against a private corporation to com- pel an election of officers and directors, which should have been held, but was not, at the annual meeting, where the charter provides in effect that in such case it shall be the duty of the directors to secure an election by special meeting as speedily as possible. To compel receiving and counting of votes. — Comm. v. Coxe, 1873, C. P., Schuylkill, 1 Leg. Chron., 89. Mandamus will lie to compel inspectors appointed to receive and count the votes at a corporate election, to receive and count votes by proxy which have been rejected for an insufficient reason. To test legality of election. — United Fire Association v. Benseman, 1877, 4 W. N. C, 1, 25 Pitts. L. J., 9. The proper mode of testing the legal- ity of the election of a board of directors is by quo warranto and not manda- mus. To compel transfer or issue of stock.— Birmingham Fire Ins. Co. V. Comm., 1879, 11 Nor., 72. Mandamus will not lie to compel a transfer of stock ; the proper remedy is an action on the case for damages. See also Presbyterian Congregation v. Carlisle Bank, 1847, 5 B., 345; Boyer v. Sav- ing Fund, 1877, C. P., Schuylkill, 1 Schuylk. Leg. Eec, 231 ; .Jacobs v. Telford &c. Turnpike Co., 1886, C. P., Montgomery, 2 Montgom. Co., 101. 564 MANDAMUS — ^MATERIALS FUENISHED. [Part I. Boyer v. Mutual Saving Fund, 1877; C. P., Schuylkill, 1 Schnylk. Leg. Eec, 231. Mandamus will not be awarded to compel a corporation to trans- fer or issue stock to one claiming to be entitled to it. To enforce right to inspect corporate books and papers. — Comm. v. Coit, 1884, C. P., 15 W. K C, 270. A writ of mandammyiill lie to compel the officers of a corporation to permit a director to have free access to the corporation's books and papers in order that he may properly fulfil his duties as a director. In such writ the corporation must be joined as a defendant ; but its non-joinder is no ground for quashing the writ ; leave will be given to amend. Comm. V. Phoenix Iron Co., 1884, 9 Out., 111. A stockholder in a private corporation who is denied access to the corporate records and information as to corporate affairs, may have a mandamus to compel the production of such books and papers as are essential to enable him to obtain the.requisite in- formation upon which to found a proposed equity suit against the corpora- tion for the assertion of his rights as a stockholder : reversing 13 W. N. C, 177. See also Phoenix Iron Co. v. Sellers, 1886. 43 L. Int., 500, 18 W. N. C, 250, 3 Am., 563. 9IARKET COmPANV. See Kinds of Corporations, DIAItKBT VALVE. Of land, see Eminent Domain. MARRIAGE ASSOCIATION. See Creation of Corporations. MARRIED -WOMEK. Void subscriptions by, see Sviscripiion. MASTER AND SERVANT. See Negligence. MATERIAImm. V. Gill, 1837, 3 Whart., 228. Where a corporation is in the nature of a charity, as in the case of a savings institution, intended for the benefit of the depositiors, and the charter is to be construed as providing that the stockholders are not, as such, entitled to participate in its mauagement, a by-law passed by the directors, declaring that every stockholder shall be a member of the corporation and upon a transfer of such stock shall cease to be a member, is void notwithstanding that the directors are empowered by the charter to "provide for the admission" of members ; or, if the power of the directors to elect members be conceded, such a by-law is not a proper exer- cise thereof. Cemetery company. — Comm. v. Union Burial Ground Society, 1875, 28 Sm., 308. A vendee of a cemetery lot is not ipso facto a member of the cem- etery corporation. Charter as evidence of membership. — McHase v. Wheeler, 1863, 9Wr., 32. The charter is prima faae evidence that all the persons named therein as corporators were such at the commencement. A person so named therein, if he be not a member, must immediately disavow his membership upon learning that such a use has been made of his name. Corporate books as evidence of membership. — Comfort v. Leland, 1837, 3 Whart., 81. In an action to recover against a corporator his propor- tion of certain expenses incurred by the trustees for which the corporators are by the charter made liable, the books of the corporation are admissible in evidence to show the amount of such expenses incurred and the amount thereof for which the defendant is alleged to have become liable, but they are not admissible for the purpose of proving that the defendant has acted as a corporator and has been recognized by the company as such. Contributing members.— Diligent Fire Co. d. Comm., 1874, 25 Sm., 291. Where a charter provides that the cor]x>ration may bestow honorary mem- bership upon active members, a by-law authorizing the election of " contrib- uting " members in the same manner as active members is void. Neptune Hose Co. 's Appeal, 1874, 6 Leg. Gaz., 79. The contributing mem- bers of a fire company held entitled to share in the distribution of its assets on dissolution. Part J.] MESNE PKOPITS — MINUTES. MESNE PROFITS. MILEAGE. 267 Basis of taxation, see Taxation. Of mtnesses, see Costs. MII^L. Loss of custom to, by construction of corporate works, see Eminent Domain. Taxation of, see Taxation. MIXES ABID MI?(IP(G. Mining of coal on another's land, see Trespass. Mines under corporation's right of way, see Eminent Domain, III. See Partnership. MINIMUM CAPITAl,. Suit on subseription before subscription of minimum capital, see Subscription. MINORS. See Elections. MINORITY. See Internal Government. Cumulative voting etc. , see Elections. Incorporation of minority of association, see Creation of Corporations. MINUTES. As evidence, see Emdenee. Eight to inspect corporate records, see Books and Records. 268 JIISAPPLICATIOX — MISUSER. [Part I. miSAPPI^ICAXION. Of corporate assets, see Injunction, Directors, miSlttANAGBIIIENT. Of directors, see Injunction, Directors, III. 2. IMIIS?(OIHBR. See Pleading. Of corporation in notice of calls for instalments of stock, see Notice. ]»IISXAKE. In estimated cost of corporate works, as affecting contract of subscription, see Siib- scription. Of judgment, by directors, see Directors. Mistakes in reports of corporate officers— Bill for correction— Estop- pel.— Mutual Building & Loan Assn's Appeal, 1886, 33 Pitts. L. J., 324. An ordinary stockholder is not precluded from maintaining a bill against his corporation for the correction of mistakes of fact affecting his interests as a corporator by reason of the fact that such mistakes were discoverable errors of computation in the quarterly and annual reports of the ofScers, which were read, audited and approved at the stockholders' meetings. In name of contracting corporations.— Berks & Dauphin Turnpike Co. V. Myers, 1820, 6 S. & E., 10. A departure from the strict style of a corpor- ation -will not avoid its contracts if it substantially appear that the particu- lar corporation was intended ; and a latent ambiguily may, under proper averments, be explained by parol evidence. Hendel v. The Berks & Dauphin Turnpike Co., 1827, 16 S. & R., 91. Where a corporation brings suit in its proper corjrarate name upon a contract signed with a different name, the question whether the contract was made by the plaintiff and the variation in the corporate name was a mistake is for the jury. Money paid under, upon instalment of stock.— Rogers v. Hunting- don Bank, 1824, 12 S. & R., 77. The parties named as transferees in a power of attorney to transfer stock, but who are not entitled to such transfer by reason of the indebtedness of the holder to the corporation, cannot re- cover from the latter the amount of an instalment paid by them upon such stock and received by the corporation before notice to it of the power of at- torney U> transfer. MISUSER. / Of corporate powers, see Charter IV, 2 and V. Partl.'i MOB — MORTGAGE. 269 inoB. Corporate property destroyed by, see Biots. Taxation of mortgages owned hy corporations, see Taxation. See also Bonds, Preferred Stock. Corporation's power to make mortgage.— Gordon v. Preston, 1833, 1 Wts., 385. A corporation which is empowered by its charter to acquire title to such real estate as may be Accessary to the prosecution of its business and " to seller dispose of" the same, has power to mortgage it. Fritchman's Appeal, 1882, 30 Pitts. L. J., 455. A corporation having the jMJwer to " take and hold land in fee simple and by lease " and to " sell or lease," has by implication the power to mortgage. Same— Admissibility of mortgage in evidence.— St. John's Church v. Steinmetz, 1852, 6 H., 273. A mortgage under a corporate seal cannot be rendered inadmissible in evidence on the ground that, the title of the corp- oration to the land in question being inalienable, it had no power to mort- gage and that therefore the mortgage is not its deed. Mortgage executed at special meeting— Batiflcation,— Gordon v. Preston, 1833, 1 Wts., 385. A mortgage by a corporation cannot be im- peached by a judgment creditor of the corporation on the ground that it was created at a special meeting convened without notice to the directors who did not attend, where such execution has been ratified by the corporation by its subsequent failure to disaiffirm it. See also Dana v. Bank of United States, 5 W. &S., 223. Mortgage created in violation of provisions of Act of 1874— Sci. fa.— Defence.— Roberts v. Crystal Spring Water Co., 1881, C. P., Chester, 1 Chest. Co., 437. In an action of scire facias sur mortgage for land conveyed by the plaintiffs, upon a purchase money mortgage, to the corporation de- fendant, the latter cannot set up as a defence that the mortgage was made without any compliance with the requirements of the General Corporation Law of 1874, as to the increase of corporate indebtedness. By foreign corporation — Power to sue upon, — Leasure v. Union Mu- tual Life Ins. Co., 1879, 10 Nor., 491. A foreign corporation may secure a loan by taking a mortgage of land in this State, and may sue in the courts of this State to enforce payment by scire facias sur mortgage. See also American Slate Co. v. Phillipsburg Bank, 1880, 8 W. N. C, 430, 37 L. Int., 366. Execution of,— Acknowledgment— Seal.— Gordon v. Preston, 1833, 1 Wts. , 385. Where the seal of a corporation is not confined to the custody of any particular officer it may be affixed to a mortgage by the corporation by the corporators present as such, and an acknowledgment by such corpora- tors is a sufficient acknowledgment. Failure to deliver mortgage.— MoCurdy's Appeal, 1870, 15 Sm., 290. A mortgage executed to a trustee under the authority of directors alone, under which bonds have been issued and sold, upon which bonds interest has been paid and to which a sequestrator has paid dividends, is valid, when duly executed, acknowledged and recorded, althongh never in the manual possession of the trustee. 270 MOETGAGE. Same— Validity as against execution-creditor.— Covey v. Pittsbgh. &c E. Co., 1858, C. P., Beaver, 3 Phila., 173, 15 L. Int., 228. A mortgage of the entire property of a corporation is valid as against an execution cred- itor without delivery of possession to the mortgagee. See also Loudensehla- ger V. Benton, 1861, 3Gr., 384, 4 Phila., 382. Ultra vires mortgage— Liability upon,— Phila. & Sunbury Railroad Co V Lewis, 1859, 9 C, 33. A corporation is liable upon its bonds, law- fully issued for an end within the purposes of its creation, notwithstanding that the corporation had no authority to execute the mortgages by which such bonds are secured. Act of April 11, 1862— Supreme Court jurisdiction over corporation mortgages.— McCurdy's Appeal, 1870, 15 Sm., 290. The Act of April 11, 1862 (P. L., 477), giving to the Supreme Court chancery jurisdiction in cases of mortgages by corporations, is constitutional. See also Swope v. Gettys- burg R. Co., 1870, 2 Lane. B. No. 16, 2 Leg. Gaz., 226. Sci fa. sur mortgage after dissolution.— Cooper v. Oriental Savings & Loan Association, 1882, 4 Out., 402. It seems that, generally, when the charter of a corporation has expired, the corporation has no power to issue a scire facias sur mortgage. What passes under mortgage by corporation— Afterward acquired property.— Covey v. Pittsburgh &c. Railroad Co., 1858, C. P., Beaver, 3 Phila., 173, 15 L. Int., 228. A mortgage of the entire property of a corpor- ation includes the corporation's afterward-acquired property. Same— Land not essential to exercise of franchises.— Robinson v. E. Co., 1870, 2 Leg. Gaz., 365. A mortgage by a corporation of all its prop- erty passes land not necessary for the enjoyment of its franchises. Same — ^Personal property. — ^Londenschlager v. Benton, 1861, 3 Gr., 384, 4 Phila. 382. It seems that a- statutory power given to a corporation to mort- gage its property and franchises does not bring vrithin a mortgage executed in pursuance of such a jrawer articles of personal property belonging to the corporation not necessary for the exercise of its franchise. Same— Land held ultra vires— Purchaser's title— Priority.— Young- man V. Elmira & Williamsport E. Co., 1870, 15 Sm., 278. Laud held by a corporation ultra vires passes under a mortgage of all the corporation's prop- erty and franchises, so as to confer upon the purchaser at a foreclosure sale a title paramount to that of a purchaser of such land under a judgment ob- tained subsequently to the date of the mortgage. Same— Extension of works under supplementary statute.— Watts v. Rwy. Co., 1867, 6 Phila., 386, 24 L. Int., 269, 1 Brewst., 418. A mortgage whose terms specifically include all the property " which shall hereafter be acquired and owned " by the corporation, includes works constructed under a supplementary statute authorizing the corporation to extend its works. Same— Corporation's interest in land entered upon under right of eminent domain. — Borough of Easton's Appeal, 1864, 11 Wr., 255. Where a corporation created for the prosecution of a public work enters, under the State's delegated right of eminent domain, upon land of a private owner, for the purpose of using the same in the prosecution of such work, title does not pass to the corporation until compensation is made or adequate security therefor given ; but a mortgage by snch a corporation, of its property and franchises, given after such entry and before judgment for damages, binds the corporation's interest acquired by such entry, subject to payment of the judgment for the purchase money. Same— Land-owner's recourse for damages. — ^Western Pennsylvania R. Co. II. Johnston, 1868, 9 Sm., 290. The sale of a railroad under a mort- gage, before the damages of an owner of land taken for its roadbed are paid or secured, does not divest the owner of his right to recover such damages ; they may be recovered from the purchaser at the fore-closure sale ; and they may be recovered in a scire facias on the original judgment for damages, bringing in the purchaser. ^"■^ J-^ 3I0RTGAGE. 271 See also Wheeling, Pittsburgh & Baltimore E. Co.'s Appeal, 1881. 1 Penny., 360. re > , Fries v. Southern Penna. Railroad & Mining Co., 1877, 4 Nor., 73. Where a railroad company gives a bond to secure land damages and takes posses- sion, and its property is subsequently sold in foreclosure, the land owner cannot proceed by scire facias against a purchaser at the foreclosure sale on a judgment for damages entered after the recording of the mortgage. He must proceed upon the bond. Martin v. Pittsburgh Southern Eailroad Co., 1880, C. P., Allegheny, 28 Pitts. L. J., 156. Ajudicial sale under a mortgage of the property and fran- chises of a railroad company does not discharge a landowner's unpaid claim for damages for land taken under the right of eminent domain ; such a claim may be enforced against the purchaser. And it cannot be defeated as against such purchaser by the fact that it was presented, reduced to judgment, to the auditor appointed to distribute the proceeds of the sale. Buffalo, New York & Phila. R. Co. v. Harvey, 1884, 11 Out., 319. The judicial sale of the property and franchises of a railroad company, under a first mortgage, does not divest an owner's interest in land appropriated by the company subsequently to 19ie execution of the mortgage, for which it neither paid nor tendered security. Such an owner may in a scire facias upon the judgment obtained by him against the company for damages, with notice to the party claiming under the judicial sale, recover the amount from the latter. Aliier, had the company duly given bond for the damages as in Fries v. South Penn. E. Co., 4 Nor., 73. Remedies of mortgage bondholders.— Buckley v. Union Canal Co., 1858, 3 Phila., 153, 15 L. Int., 212. Where a minority of the bondholders of a quasi-public corporation have stood by and seen the majority bind them- selves to a scheme of finance which promised best for all parties, they cannot have an injunction to restrain the carryingoutof the proposed arrangement; their sole remedy is the legal one upon the mortgage. ' Phila. & Baltimore E. Co. v. Johnson, 1867, 4 Sm., 127. Where a corpor- ation issues bonds secured byamortgage and with interest coupons attached, and agrees that upon three successive defaults in payment of interest the principal shall become due, a provision in the mortgage that the trustees thereof shall sell the mortgaged property at the request of the holders of a certain amount of the bonds is no defence to a suit on the bonds after a breach in their conditions. Montgomery County Agricultural Society v. Francis, 1883, 7 Out., 378. An action will lie by a single holder of the bonds of a corporation for interest due upon his bonds notwithstanding that the trust mortgage secur- ing the bond provides that in defaixlt of payment of such interest or the principal, the trustees shall, at the written request of holders of such bonds to an amount not less than a specified sum, proceed by scir'i facias to collect the interest and principal of said bonds for distribution pro rata. Such stipulation in the mortgage does not make the specified proceeding the only remedy. Same— Sale of mortgaged property— Jurisdiction.— Ashhurst v. Mon- tour Iron Co., 1860, 11 C., 30. The Pennsylvania courts have no jurisdic- tion as courts of equity to decree, at the suit of the mortgage-trustees of the bondholders, a sale of the property mortgaged by a corporation to secure its bonds. Remedied by Act of May 5, 1876, P. L., 123. Same— Sale of mortgaged property extending beyond State.— McEl- rath V. Pittsburg & Steubenville Eailroad Co., 1867, 5 Sm., 189. A trustee of a railway mortgage who is within the jurisdiction of a court of this State may be authorized and compelled to sell in foreclosure all the estate and in- terest of the company in a part of its road extending beyond the limits of the State that will pass under the terms of the mortgage. Evidence in suit on mortgage— Declarations as to amount due.— Johnston®. Elizabeth Building Association, 1883, 8 Out., 394. Declarations 272 MORTGAGE. [Part I. by the secretary of a corporation as to the amount due on a moi'tga^e held by it are not admissible in evidence in a suit on the mortgage, unless it be shown that the secretary had authority to bind the corporation by such ad- missions. L^unctionby mortgage-bondholder to restrain taking up and aban- donment of corporate works. — ^Watts v. Rwy. Co., 1867, 6 Phila., 386, 24 L. Int., 269, 1 Brewst., 418. A corporation has no right to take up and abandon the use of a part of its -works subject to a mortgage although it be alleged in defence of snch action that the works are not self-sustaining, but an unprofitable burden, that an objecting bondholder has other and ample secTU-ity and that the company is willing to give security for the moneys re- ceived from the sale of the property taken up. Such action will, at the suit of a mortgage-bondholder, be enjoined. Bigbt of vendor to issue sci. fa. instead of accepting stock.— Roberts V. Crystal Spring Water Co., 1881, C. P., Chester, 1 Chest. Co., 437. A state- ment by a promoter of a proposed corporation in the application for the charter does not constitute a contract which the corporation when created is bound to carry out, e. g.,a, statement that a certain amount of tull paid stock is to be issued to certain parties in full payment for real estate to be con- veyed to the corporation by snch parties does not preclude the latter from issuing a scire facias upon a mortgage given them by the corporation for the purchase money of such real estate. Mortgagee out of possession— Lien creditor— Priority.— Merchants' Bank v. Petersburgh R. Co., 1877, C. P., 4 W. N. C, 264. A mflrtgageeont of possession of the personal property of a corporation has no priority over a lieu creditor. Execution against mortgaged property necessary to exercise of franchises— Objection need not be made by mortgagee. — Covey v. Pitts- burgh &c. Railroad Co.. ia58, C. P., Beaver, 3 Phila., 173, 15 h. Int., 228. Property of a quasi-public corporation which is necessary to the exercise of its franchises cannot be levied on by fi. fa. on an ordinary debt. This prin- ciple rests upon public jwlicy ; the corporation may itself object to such levy, without the intervention of a mortgagee of its property. Bill in Federal court to ascertain whether mortgage is a lien— Bill in State court to stay waste — Jurisdiction. — ^McGeorge v. Hancock steel & Iron Co., 1875, C. P., Montour, 11 Phila., 602, 32 L. Int., 372. The pen- dency of a bill in equity in the U. S. District Court, to ascertain whether a certain satisfied mortgage of a corporation's property is or should be stiU a lien upon it, and, if so, to a.seertain who are entitled to the bonds secured thereby, does not prevent a State court from entertaining a bill against the defendant in the former court, a mortgagee, to restrain waste of the prop- erty and for the appointment of a receiver. Title of mortgagee of corporate property— Constitutional law.— Drew V. New York & Erie R. Co., 1870, 32 Sin., 46. Where a State legisla- ture appoints a commissioner to ascertain how much land is properly in- cluded in a purchase by a corporation under an authority from the State to purchase so much as might be necessary for the legitimate purposes of the company, providing that upon a release by the mortgagees of the railroad of 80 much as should be thus found not to be necessary, the title of such mort- gagees should be ratified and confirmed as to the rest, and this is done ; the transaction is an executed grant on the part of the State and is such a con- tract as is protected by the Constitution of the United States from impair- ment by subsequent legislation. Mortgagee of land takenunderrightof eminent domain— Interven- tion in assessment of damages. — Keller v. Pittsburg & Lake Erie R. Co., 1881, 29 Pitts. L. J., 316. Where a mortgagee of land entered upon by a corporation under the right of eminent domain intervenes before the return of an award, the damages will be awarded to the owner for the use primarily of the mortgagee. Part /.] MORTGAGE — NEGLIGENCE. 273 Sherifi's sale upon mortgage of corporate property— Act of April 25, 1850 — Statute of limitations. — Sham okin Valley APottsville Kailroad C!o. ■V. Malone, 1877, 4 Nor., 25. A sheriff's sale upon a mortgage of the prop- erty of a corporation extinguishes the corporate existence so as to bring a claim against the company within the provisions of the Act of April 25, 1850, Sec. 7 (P. L., 570), providing that the running of the statute of Limitations shall be suspended in cases where a corporation defendant at the time of the accruing of the cause of action has " ceased from or suspended the ordinary business for which said corporation was created." Mortgage of leaseholds. — Lewis v. Philadelphia Axle Works, 1875, C. P. , 1 W. N. C. , 327. Corporations are within the purview of the Act of April 27, 1855 (P. L., 140), authorizing the mortgaging of leaseholds. mORTMAIIV. See Powers of Corporations, Mortgage. MUNICIPAI,.* Begulation of corporations, see Liabilities and Duties of Corporations.* Bonds; bill to compel cancellation of, in re-exchange for corporation's stock, set Bonds, V. Reform club, see Powers of Corporations. xAmc Change of corporate name, see Charter, III; not a sufficient ground of release of subscriber for slock, see Subscription. Similarity of name of proposed corporation to that of existing body, see Creation of Corporations, III. Inaccuracy in name of contracting corporation, see Contracts, IV.. Mimomer in mils by or against corpq^ations, see Pleading. Misnomer of corporation in notice of calls for instalments of Stock, see Notice. Of directors, see Directors, III, 1 and S. Corptrratim's neglect of duty of inquiry in permitting transfer of stock, see Stock, Notice. Possible injuries from negligent operation of corporate works, see Eminent Do- main. . •See, as to municipal corporations In general, and municipal regulation of private corporations, Part II. 18 — MUBPHY. 274 NEGLIGENCE. IPaH I. Corporation's liability for negligence of servants.— New York.&c. Telegraph Co. v. Dryburg, 1860, 11 C, 298. A corpoiation may be sued in tort, in ite corporate character, for damages arising from the neglect of its employes appointed without a seal. See also Penna. E. Co. v. Vandiver, 1862, 2 Wr., 365. Boyd V. Insurance Patrol, 1886, 18 W. N. C, 209. A private corporation exercising a public function or engaged in charitable work for private gain is not such a charitable institution as is not liable for the negligence of its employ^. Pattereon v. Pittsburgh & Connellsville Eailroad Co., 1874, 26 Sm., 389. Where any defect in the works of a corporation is of such a character or occurs at such a time that the corporate authorities cannot reasonably be ex- pected to have knowledge of it, it is the duty of a servant of the coi-poration who has knowledge of it to give notice thereof to the officer who has the care of the particular department. Negligence of such officer thereafter, iu attend- ing to the defect, is the negligence of thecorporation. Same — ^Liability to servants. — Ardesco Oil Co. v. Gilson, 1869, 13 Sm., 146. A corporation is liable in damages to its employe for injuries sus- tained through the negligence ol its president acting within the scope of his official functions, e. g. where he personally superintends the erection of a work by reason of negligently permitted imperfections in which the em- ploye's injury occurr^. See sdso f^azier v. Penna. Sailroad Co., 1860, 2 Wr., 104. Negligence in constructing corporate works. — ^Pittsburgh, Fort Wayne & Chicago R. Co. v. Gilleland. 1867, 6 Sm., 445. A common law action may be brought against a corporation for unskilfulnessor negligence in constructs ing its works, damage being thereby done to the plaintiff. Comjjensation for such injuries cannot be included in the assessment of damages for enter- ing upon and taking the land. Same— Independent contractor— Article ZVI, Section 8, Constitu- tion. — ^Edmondson v. Pittsburgh, McKeesport & Tougbiogbeny Bailroad Co., 1886, 17 W. N. C, 46. The rule that a person is not liable for damages re- sulting from the negligence of one employed by him as an independent con- tractor applies to corporations possessing the right of eminent domain. Such liability is not imposed by Section 8, Article XVI, of the Constitution. Neither would that Section apply where a corporation is constructing its works upon land purchased by it and not taken under the right of eminent domain. See also Rhoads v. Lancast^ Ave. Improvement Co., infra. Negligence in maintaining corporate works.— Schuylkill Navigation Co. V. McDonough, 1859, 9 C, 73. The special provision in its charter for remedies for injuries arising from a corporation's construction of its works does not exclude the common law remedies for the corporatioii's abuse of its franchises or neglect of its duty to properly maintain such works. See also Penua. & Ohio Canal Co. v. Graham, 1869, 13 Sm., 290; Fehr v. Schnyl- kUl Navigation Co., 1871, 19 Sm., 161. Bom V. Plank Road Co.. 1882, 12 W. N. C. 283. A corporation which is bound to keep a highway in repair is liable for injuries caused by an obstruc- tion which it negligently permitted to remain in such highway, whether such corporation be public or private. Lack of proper supervision in such case is the same in effect as actual notice to the company. Rhoads v. Lancaster Ave. Improvement Co., 1886, C. P., Montgomery, 17 W. N. C, 125, 1 Montgom. Co., 181. A contractor who merely i)erforms for a corporation certain work at so much per unit of work, and under the direc- tion and control of an officer of the corporation, -is not such an independent contractor as that his negligence will not render the corporation liable. A corporation which is vested with its charter rights upon the inherent condi- tion of keeping its works fit for the safe use of the public cannot divest itself of its responsibility by transferring the performance of its duties to a private individual. Affirmed : 44 L. Int., 309, 1 Crum., 377. part 7.] NEGLIGENCE — NON-JOINEE. 275 Liability of purchaser of corporate property and francliises.— Wells- borough &c. Plank Koad Co. v. Griffin, 1868, 7 Sm., 417. A successor by purchase to the rights and property of a corporation, not under the Act of April 8, 1861, is a distinct person, notwithstanding an act of Assembly pro- viding that npon such sale the rights and franchises of the corporation should be as fully vested in the purchaser or purchasers as if he or they had been the original corporators, and that from thenceforth all the provisions of the act of incorporation, -with the corporate powers conferred and the several laws of the Commonwealth in relation thereto, should be lor the benefit of the said purchaser or purchasers. An action, therefore, cannot be main- tained against the corporation for injuries resulting after such a sale from the purchaser's neglect to keep the former works of the company in proper repair. Non-repair of abandoned workEt— Abandoning company's liability. —Fredericks v. Penna. Canal Co., 1883, C. P., Lycoming, 40 L. Int., 24, 16 Phila., 605, 33 Pitts. L. J., 117. A corporation which has lawfully aban- doned its works cannot be held liable for damages resulting from the non- repair of the latter by reason of 'having made certain repairs subsequently to snch abandonment ; it cannot either assume the control or incur the liabili- ties which existed before abandonment. Affirmed : 13 Out., 50. NEGOTIABLE I?(SXRViaE?(XS. See Bills and Notes, Bonds. JJEX PROFITS. See Taxation. KBTW STOCK. See Increase of Capital. Bight to subscribe for, see Subscription. When principal and when income, as between legatee for life and remainderman, see Principal and Income. SVEVf TRIAI«. See Trial. Ti(m EST FACTUM. See Pleading. NON-JOIXDER. See Action and Suit, III; Mandamm. 276 NON-KEPAIE — NOTICE. [i'rtrt /. T<(ON-R.EPAIR. Of corporate works, see Negligence. stock held by, see Attachment, Tcamtion, ]KO]V-lTSER. Of corporate powers, see Charter, If, 2 and V ; as affecting the contract of sub- scription, see Snbseription. Of corporate property, see Abandonment. KIOTES. See Bills and Notes. NOTICE. I. OF COEPOEATE MEETINGS AND ELECTIONS. II. OF CALLS FOR INSTALMENTS OF STOCK ETC. III. CO^fSTEXTCTIVE NOTICE. IV. MISCELLANEOUS. Judicial, see Evidence. In proceedings to assess damages for land taken under the right of eminent domain, see Eminent Domain, V, 4; cost of service of, see Id., IV, 4, l. Of intended application for charter, see Publication, Creation of Corporations, II. Of road view, see Roads and Highways. Of charges preferred against member of corppraUon, see Disfranchisement. Of settlement of taxes, by Auditor General, see Taxation. To cestui que trust, of transfer of stock to successor in trust, see Irust and Trus- tee. To purchaser of corporate property by landowner issuing sei. fa. on judgment for damages, see Eminent Domain; judgment for lajid damages obtained without notice, see Id. I. Of Corporate meetings and Elections. Necessity of notice to validity of acts.— Fisher ». Harrisbnrg Gas Co., 1857, C. p., Dauphin, 1 Pear., 118. An act done by directors of a corpora- Part I.] NOTICE. 277 tion is not valid unless notice of the meeting at which it was done was given to all the directors. Same — ^Lease of corporate property.— Kersey Oil Co. v. Oil Creek &c. Railroad Co., 1877, C. P., 5 W. N. C, 144, 12 Phila., 374, 34 L. Int., 362. Directors of a corporation have no power to execute a lease of the property of the corporation directed at a meeting not called in accordance with the charter and by-laws, and without notice to g,ll the directors and stock- holders. Same— Mortgage executed at special meeting— Ratification.— Gor- don V. Preston, 1833, 1 Wts., 385. A mortgage by a corporation cannot be impeached by a judgment creditor of the corporation on the ground that it was created at a special meeting convened without notice to the directors who did not attend, where such execution has been ratified by the corpora^ tion by its subsequent failure to disaffirm it. See also Dana v. Bank of United States, 5 W. & a, 223. Same— Proposed amendment of charter.— Swedes' Church Case, Dec. 18, 1847, C. P. Phila., Ms., Brightley's Dig., 404. An alteration in the charter of a corporation cannot be made on the vote of a majority at a stated meeting of the corporation convened without notice of the intended proposi- tion to alter the charter ; a notice that an alteration of the constitution will be proposed at a meeting must" be given to all parties interested ; otherwise a bare majority vrill not be held sufficient. Same— Acceptance of charter.— Shortz v. Unangst, 1841, 3 w. & s., 45. Acceptance of a charter cannot be properly obtained by carrying the charter around and procuring privately the signatures of the members of the asso- ciation for which it is proposed ; such a charter is not binding upon those who do not sign it. Assent should be expressed in the associate capacity at a meeting duly convened after notice to all the members. See also Comm. V. Cullen, 1 H., 132. • Langolf V. Seiberlitch, 1851, C. P., 2 Parsons, 64. To make the consent of a majority of the members of a corporation binding upon a dissenting minority, it must be given at a meeting called for the purpose of considering the question in dispute, and of which due notice has been given. This rule holds true not only as to the amendment of charters, but as to other corp- orate acts. Consent obtained by private canvassing among the corporators is not binding. See also Fisher v. Harrisburg Gas Co., 1857, C. P., Dauphin, 1 Pear., 118. Same— Dissolution— ^Act of April 9, 1856. — Marietta Building Asso- ciation, 1878, C. P., Lancaster, 10 Lane. B., 37. A corporation will not be dissolved under the Act of April 9, 1856 upon a petition of a minority of the corporators ; nor where the petition for dissolution is not under the corporate seal ; nor where the notice of the call for the special meeting at which it was resolved to present the petition contained no statement that that was an ob- ject of the meeting ; a statement that the object of the meeting was "for the purpose of devising measures for the relief of the members " is not sufficient. To warrant the granting of such a petition it must also appear that it would be " without prejudice to the interests of the corporators." The Act must be strictly complied with. Same— Increase of stock— When validity cannot be questioned.— Columbia Bank v. Williamsport Gas Co., C. P., Lycoming, 1884, 41 L. Int., 498. Where all the stockholders of a corporation which under its charter possesses the right to increase its stock, meet in due form and by unanimous consent increase the stock, but omit to give notice as required by the chart- er, a stockholder claiming under one who was one of the stockholders at the time of such increase cannot question the validity of the increase. That can be done only by the State. Affirmed in 16 "W. N. C, 357. Corporate elections.— Gowen's Appeal, 1881, 10 W. N. C, 85, 38 L. Int. 215. Where a charter provides that upon a failure to elect corporate officers at any regular meeting, it shall be lawful to hold a meeting for the 278 NOTICE. [Part I. election of snch officers on any day thereafter, the president and secretary giving at least ten days' previous notice thereof, and another section of the charter provides that special meetings may be called by order of the presi- dent etc., of which meetings twenty days' notice must be given, specifying the object, and that at snch meetings no business shall be transacted un- less a majority of the stockholders are present in person or by proxy ; a meeting called by the managers, and by them termed "special," for the purpose of holding an election which by reason of an irregularity had not been held at the regular time, will be decreed to have been held under and by virtue of the first mentioned, and not by virtue of the latter section, and the officers elected at such a meeting will be held validly elected notwith- standing that a majority of the stockholders were not, in person or fey proxy, present. Comm. V. Parrish, 1885, C. P., Luzerne, 2 Lane. Law Eev., 169, 14 Luz. Leg. Keg., 37, 3 Kulp, 231. Where the by-laws of a corporation provide for an election of a board of directors of seven upon a day certain, the fail- ure to choose a full board because of a tie vote as to certain of the candi- dates does not vitiate the election of those who received a clear plurality. In such a case the corporation may proceed to fill the vacancies caused by the tie votes at a special meeting of the stockholders held upon due notice. Affirmed: Wright*. Ctomm., 13 Out., 560. Notice of intention to vote by cumulatiTe metliod.— Pierce v. Comm., 1883, 8 Out., 150. Article XVI, Section 4, of the State Constitution, pro- viding for the right to vote cumulatively for directors of corporations, is not merely directory, and does not require legislation to give it efiFect. It is not necessary to the exercise of this right that those intending to vote in that manner should give notice of snch intention. II. Of Calls for Instalments of Stock Etc. When and for what notice is necessary. — Gmbb v. Mahoning Navi- gation Co., 1850, 2 H., 302. In an action to recover the amount of a sub- scription proof of notice to pay is not necessary to a recovery ; such notice is necessary merely to subject the stockholder to the jpenalty for non-pay- ment. See also Gray v. Monongahela Navigation Co., 1841, 2 W. & S., 162. McCarty v. Selinsgrove &c. Eailroad Co., 1878, 6 Nor., 332. Where an act of incorporation provides that public notice of calls shall be given for a certain length of time before the time for payment, snch notice is necessary, not only to enable the corporation to enforce the penalties for non-payment, but to enable it to maintain an action upon the contract of subscription. Notice of subsequent calls not necessary after denial of ownership of stock.— Cass V. Pittsburgh, Virginia & Charlestown Railway Co., 1875, 30 Sm., 31. Where a subscriber, upon receiving notice of a call for a second instalment, addresses a note to the secretary of the company denying the re- ceipt of notice of the first call and denying that he is a stockholder, it is not necessary to give him notice of subsequent caUs, such denial operating as a waiver of all notice. Misnomer of corporation in notice. — Gray v. Monongahela Navigation Co., 1841, 2 W. & S., 156. A misnomer of a corporation in its notice to stockholders to pay instalments is immaterial where such notice was neces- sary merely to subject the subscribers to a penalty for default, and, iu the action for snch instalments, the penalty is waived. Notice of forfeiture for non-payment. — Germantown Railway Co. v. Fitter, 1869, 10 Sm., 124. To give validity to a forfeiture of stock for the non-payment of calls, no notice of the intention of the directors to forfeit the stock is necessary. The stockholders are entitled to no further notice to pay than such as is provided for in the charter. Part /.] NOTICE. 279 Witte V. People's Passenger Railway Co., 1873, C. P., Schuylkill, 1 Leg. Chron. R., 252, 5 Leg. Opin., No. 19, 5 Leg. Gaz., 273. Equity will not re- lieve against a forfeiture of stock for non-payment of assessments on the ground that the delinquent stockholder received no actual notice of the for • feitore. Regular notice of the assessment is a sufficient protection. III. ConstructiTe 9Iotlce. Notice to directors or officers as notice to corporation.— Bank v. Whitehead, 1840, 10 Wts., 397. Knowledge imparted by a director to the board of directors at a regular meeting is notice to the corporation. Custer V. Tompkins County Bank, 1848, 9 B., 27. Notice to a director is not notice to the corporation unless the former is a regularly constituted or- gan of communication with the latter. Wilson V. McCuUough, 1654, 11 H., 440. It seems that in a transaction which does not fall within the circle of the ordinary duties of a particular officer of a corporation, but is peculiar and extraordinary, notice to such officer, when not communicated by him to the corporation, is not notice to the latter. To stockholders.— Union Canal Co. v. Lloyd, 1842, 4 W. & S., 393. A stockholder has not, as such, constructive notice of claims of the corporation to lands. Tete V. The Bank, 1869, C. P., 4 Brewst., 308, 26 L. Int., 157. Stock- holders are affected with constructive notice of the by-laws of their corpor- ation. Same — Of directors' misappropriation of stock. — Kimmell v. Geeting, 1853 2 Gr., 125. Where directors of a corporation have divided among themselves stock purchased by one of their number under a resolution of the board which contemplated that the purchase should be for the benefit of all the stockholders, a transfer of the stock on the books to the directors and the directors' voting such stock at the corporate elections constitute a suffi- cient means whereby the stockholders might discover the fraud. Therefore a stockholder who has neglected for a period of six years after such possibil- ity of discovery to seek redre.«s for such fraud is debarred from bringing an action on the case against the directors for conspiracy. See Evans' Appeal, rV, infra. Same— Of cliange in charter-Subscription,— Bedford Railroad Co. v. Bowser 1864, 12 Wr., 29. A subscriber who has actively participated in the organization of a corporation and voted at its elections after a change has been made in its charter, whereby the amount of subscriptions originally necessary has been reduced, is not released from liability by such change. As a corporator he will be presumed to be cognizant of the terms of his charter. To directors. — Fisher V. Harrisburg Gas Co., 1857, C. P., Dauphin, 1 Pear. 118. It is a prima /acie presumption that adirector knowsof a corpor- ate act shown upon the minutes of the company ; but this presumption may be repelled by proof. Htmtzinger v. National Fire Ins. Co., 1877, 34 L. Int., 313. A director of a corporation in dealing with it as an independent contracting party will be held to a strict knowledge of the powers of the officers with whom he makes the contract. To corporation— Of defects in corporate works.— Born v. Plank Road Co 1882 12 W. N. C, 283. A coriwration which is bound to keep a high- way in repair is liable for injuries caused by an obstruction which it negli- gently permitted to remain in such highway, whether such corporation be public or private. Lack of proper supervision in such case is the same in effect as actual notice to the company. 280 NOTICE. \.PaH 1. Patterson v. Pittsburgh & CtonnellsviUe Railroad Co., 1874, 26 Sm., 389. Where any defect in the works of a corporation is of such a' character or occurs at such a time that the corjrorate authorities cannot reasonably be ex- pected to have knowledge of it, it is the duty of a servant of the corporation who has knowledge of it to give notice thereof to the of&cer who has the care of the particular department. Negligence of such of&cer thereafter in at- tending to the defect is the negligence of the corporation. Same— Of ownership of stoc^— ^ower of attorney.— Pennsylvania Railroad Company's Appeal, 1878, 5 Nor., 80.' If seems that the fact that the signatures to a power of attorney to transfer stock are thirteen years old, is sufficient to put the corporation upon inquiry. To assignee of secuilties from president of corporation— Garrard v. Pittsburg & Connellsville Railroad Co., 1857, 5 C, 154. A party receiving from the president of a corporation, as collateral security for an anteced- ent individual debt owing to him by such president, a bond payable to the corporation, endorsed with a blank assignment the language of which im- ports the authority of the directors and therefore that an assignment is to be made by the president only for the purposes of the company, is not a iona fide holder without notice. The general rule is that the possession of the securities of a corporation by its chief officer is the possession of the corpor- ation : affirming 1 Crumrine, 378. See also Pittsburg & Connellsville Rail- road Co. V. Barker, 1857, 5 C, 160. Of conveyance of land to corporation— Act of April 21, 1854.— Stock- well V. McHenry, 1884, 11 Outer., 237. The recording in the proper county of the certificate of incorporation of a company duly organised under the Act of April 21 ; 1854 (prior to the passage of the Acts of March 27, 1865 and March 18, 1875), is constructive notice to subsequent purchasers and mort- gagees of the conveyance to the corporation of the lands described in the certificate, whether the names of the individual grantors have been indexed in the recorder's office or not. Of relationship of juror to stockholder.— Irvine v. The Bank, 1858, D. C, Allegheny, 1 Crum., 422, 6 Pitts. L. J., 9. The fact that one of thejur- ors in a case wherein a corporation is a party is a son of a stockholder in the corporation, is sufficient ground for setting aside the verdict and granting a new trial, providing the party moving therefor had no knowledge of the re- lationship before the trial. The fact that the charter of the corporation re- quired it t» exhibit publicly a list of its stockholders, with which the mov- ing party might have compared the list of jurors for the purpose of ascertain- ing relationship does not amount to such constructive notice as would estop him from asking for a new trial. IV. Miscellaneous* Notice to parties contracting with corporation— Limitations of president's authority.— Grafius v. Land Co., 1859, C. p., 3 Phila., 447, 16 L. Int., 292. The president or other chief officer of a corporation has the power of a general agent within the scope of the business for the transaction of which the company was chartered. Secret limitations of this authority cannot relieve the corporation of liability to contracting parties to whom they were unknovm. Same— Company's rules regulating contracts.— Donaldson v. Reading Railroad Co., 1875, C. P 1 W. N. C, 284. A party contracting vrith acori? oration IS not affected by an aUeged rule of the company regulating such contracts of which he was not actually informed at the time of making the contract and which was not t» be found in any written or printed form and did not appear upon the company's minutes as having been adopted by a vote of the directors or stockholders. v j Part /.] NOTICE. 281 Same— Sesolution limiting pay of employe.— Darrach v. Hanover Junctioa & Susquehanna Railroad Co., 1876; C. P., Lancaster, 9 Lane. B., 141. A resolution of a board of directors of a corporation limiting the pay of an employ^, not made known to him, will not prevent such employe from recovering against the corporation what the services were reasonably worth. Corporation's knowledge of acts of its agents or officers.— Allegheny City t). McClurkan, 1850, 2 H., 81. A corporation is liable upon contracts duly made in its name by its accredited agents, although such contracts are not expressly authorized by it charter, where they have been entered into jublicly and in such manner as by necessary and irresistible implication to be within the knowledge of the corporators and the latter have received the bWefit flowing from such contracts, unless the latter are prohibited by stat- ute. Municipal corporations are within this rule. Rational Fire Ins. Co. 'a Estate, 1880, C. P., 8 W. N. C, 436. The fraud of tfficers and agents of a corporation will be imputed to the corporation it- self, where the latter, after obtaining full knowledge of it, retains the fruits thertof. Sfeckholders' notice of corporation's guaranty of bonds.— Coxe v. Cam^n & Atlantic E. Co., 1885, C. P., 42 L. Int., 151. What is sufficient evideice upon which to ^bmit to a ^ry the qufestion whether the stockhold- ers of a defendant railroad company had binding knowledge of the com- pany'aguaranty of the interest upon bonds of a leased road. Affirmed : 18 W. N.C., 20. Snbffiriber's knowledge of breach of condition of subscription— Waivel — Livingstone v. Pittsburgh & Stenljenville Railroad Co., 1859, 2 Gr., 21 9\ In an action by a corporation to recover instalments due on stock, in whichlhe defendant alleges a conditional subscription and that the condition was not klfilled, the question whether or not he waived the condition and acknowleteed the subscription as binding by continuing to act as a stock- holder aftfc he had knowledge of the breach, may properly be submitted to the jury. Notice ^ denial of right to dividends— Limitations.— Phila., Wilm. & Bait. R.lo. V. CoweU, 1857, 4 C, 329. A corporation cannot set up the statute of imitations against a stockholder's claim for dividends until a de- mand and r^sal or a notice to the holder that his right to the dividends is denied. Notice to Iprporation of power of attorney to transfer stock— Pay- ment of insfLlment. — Rogers v. Huntingdon Bank, 1824, 12 S. & R., 77. The parties nabed as transferees in a power of attorney to transfer stock, but who are not emtled to such transfer, by reason of the indebtedness of the holder to the cSporation, cannot recover from the latter the amount of an instalment paidlby them upon such stock and received by the corporation before notice to Vof the power of attorney to transfer. Stockholder'^ knowledge of illegal profit made by directors— Laches.— EvansAppeal, 1876, 31 Sm., 278. A bill by stockholders to com- pel directors to acSiunt for profits made by them illegally by a sale of land to the corporation, Will not be sustained when the stockholders, after gain- ing full knowledglof such illegal profit, delayed moving for relief for an unreasonable lengtW time ; which may be a less period than six years. Where the relief praed is that the defendants pay the profit etc. to the corp- oration, the relief is\pnght through the equitable rights of the corporation, and the knowledge ajd conduct of the corporation will be considered in de- termining the questidof laches : affirming 1 W. N. C, 127. See, as to constructVe notice of directors' misappropriation, Kimmell v. Geeting, III, »upra. \ Notice to quit.— "wVf v. Goddard, 1840, 9 Wts., 544. The authority of the agent of a corporati(\ to give notice to its tenant to quit possession need not be under seal. 282 NOTICE — OBJECTS. [Part I. Seauestration.— Reidv. North Western Railroad Co., 1858, 8 C, 257. A writ of sequestration under the Act of June 16, 1836, may issue without pre- vious notice. Of application for change of corporate name— Act of April 20, 1869. —First Presbyterian CJhnrch of Bloomfield, 1884, 11 Outer., 543. The power of the courts of common pleas, under the Act of April 20, 1869 (P. L., 82), to entertain a petition for the change of the name of a corporation, cannot be exercised where no notice of the application has been given to the Audi- tor General, as provided in the Act. The Act of April 20, 1869 (P. L., 82), requiring a notice to the Auditor General of an application to change a corporate name, applies to incorpor- ated religious societies. It applies to all corporations not for profit as well as to those for profit. Competency to prove service of notice. — Crozer v. Leland, I83e, 4 Whart., 12. In an action brought by a corporation a member thereof is not a competent witness to prove service of notice where that is a part of the issue. -HVL. TIEL, CORPORATIOX. See Pleading. ?iijisa9ice;. Corporation may be indicted for maintaining,— Delaware Division Canal Co. v. Comra., 1869, 10 Sm., 367. A private corporation nay be in- dicted for maintaining a nuisance. See alk> Northern Centra B. Co. v. Comm., 1879, 9 Nor., 300. Pittsburgh, Virginia & Charleston Railway Co. v. Comm., 1882, 5 Out., 192. A corporation may be indicted for a breach of a duty inposed on it by law, e. g. for a failure to reconstruct a highway, thereby cieating a nui- sance. Comm. V. Penna. R. Co., 1888, 20 W. N. C, 448. Acorporition which is the lessor of the works of another corporation is likewise liabie. Damages for prosecution of corporate work where latter is a nui- sance. — Pottstown Gas Co. v. Murphy, 1861, 3 Wr., 257. A corporation's exemption from liability for consequential damages arises oily where, being clothed with a portion of the State's right of eminent donuin, it takes pri- vate projwrty for public use on making proper compensatioi, and where such damages are not part of the compensation required. The fact of incorpora- tion with the privilege of buying land does not protect ths corporation from liability for damages arising from the prosecution of the work for which it was incorporated where this amounts to a nuisance. Nuisance maintained by owner of land taken uider right of emi- nent domain. — Harvey v. Lackawanna & Bloomsburg Railroad Co., 1864, 11 Wr., 428. Damages cannot be recovered for the intoference by the con- struction of corporate works with what was a nuisanc maintained by the landowner, e. g., tramways constructed by the owner to the use of his coal cars across a public road. OBJECTS. For which incorporation will be granted, see Creation f Corporations, I Part 1.1 OBSTRUCTION — OFFICE AND OFFICEES. 283 OBSTRVCXIOIX. In Mghwaya, see Negligence, Nuisance. Of approach to ferry, see Eminent Domain. OPFEKCE. Of member of corporation, see Disfranchisement. OFFICE AKD OFFICERS. I. CORPORATION'S LIABILITY FOR ACTS OP OFFICERS. II. POWERS AND RIGHTS OF OFFICERS. III. LIABILITIES OF OFFICERS. IV. MISCELLANEOUS. Office as place of business, service at, see Service ; statement of place of business in application for charter, see Creation of Corporations. Office in Pennsylvania, of foreign corporation, see Foreign Corporations ; office li- cense tax, see Taxation. Election of officers, see Elections ; legality of tenure of office and proceedings to test, see Id. and- Quo Warranto. Mandamus directed to, see Mandamus. Over-issue of stock hy, see Stock and Stockholders. Officer as liquidating trustee, see Trust and Trustee. Witness fees of officer, see Costs. Of foreign corporations, service on, see Foreign Corporations. Issue and transfer of bills and notes by and to corporate officers, see Bills and Notes, III. Suits against, for negligence, mismanagement or fraud, see Action and Suit, II, 3.- Acceptance by, of charter or amendment thereto, and assent of corporators to acts of, see Aee^tance and Assent, See further, as to directors, Directors. I. Corporation's Liability for Acts of Officers. ySiee also II ; assignment of securities by president, see IV. When, in general, corporation is liable for acts of officers— Secret limitations of authority .—Shoemaker v. The Insurance Co., 1875, 1 W. N. 284 OFFICE AND OFFICEES. [Part I. C, 191. The officeis of a corporation have-no power to bind the corpora- tion in matters beyond the scope of the authority given them by the charter. Farmers' Bank v. McKee, 2 B., 318. In order to make an agreement by the president of a corporation under the corporate seal evidence against the corporation, it must be shown to be within the scope of the president's au- thority Grafius v. Land Co., 1859, C. P., 3 Phila., 447, 16 L. Int., 292. The pres- ident or other chief officer of a corporation has the powers of a general agent within the scope of the business for the transaction of which the company was chartered. Secret limitations of his authority cannot relieve the corp- oration of liability to contracting parties to whom they were unknown. Lloyd V. West Branch Bank, 1850, 3 H., 172. The acts ef the officers of a corporation which are within the scope of the general practice and course of business of such officers in such institutions generally, are binding upon the corporation in favor of third persons without knowledge that the officer was in the particular-instance transcending his authority ; but such lack of knowledge vrill not avail where the act of the officer was sanctioned by no general practice. Same — ^Admissions and acts as evidence. — Spalding v. The Bank, 1848, 9 B., 28. The admissions as to matters within the scope of his agency of an officer of a corporation who is also its general agent are evidence against the corporation. Magill V. Kauffman, 1848, 4 S. & R., 317. The acts and declarations of the trustees and agents of an association both before and after incorporation are admissible in evidence against those represented. Hackney v. Allegheny Ins. Co., 1846, 4 B., 185. The declarations of an officer or agent of a corporation, not within the scope of his authority, do not bind the corporation, and are not admissible in evidence against it. Steamboat Co. o. McCfutcheon, 1850, 1 H., 12. The declarations of an officer of a corporation in transactions within the scope of his authorliy are admissible in evidence against a corporation and binding upon it. Johnston v. Elizabeth Building Association, 1883, 8 Out., 394. Declara- tions by the secretary of a corporation as to the amount due on a mortgage held by it are not admissible in evidence in a suit on the mortgage, unless it be shown that the secretary had authority to bind the corporation by such admissions. Same— Becovery in trespass against officer.— ISoundieu Northampton Water Co., 1847, 7 B., 233. A recovery in an action of trespass against offi- cers and agents of a corporation is not evidence against the corporation with- out proof of privity. Same — President's firaudulent agreement that subscriptions need not be paid.— Custar v. TitusvsUe Gas & Water Co., 1869, 13 Sm., 381. In an action by a corporation upon a contract of subscription an offer by the defendant to prove merely an agreement by the president of the corporation that a subscriber should not be called upon for payment of his stibscription, cannot be received as evidence of snch fraud npon lona fide subscribers as would release them from liability upon their contract. Such an offer must, to be admissible for that purpose, be merely a link in a chain of evidence to show a general scheme of fraud on the part of the company to procure worth- less subscriptions in order to inveigle others. The law vpill not presume in such a case that the agreement of the president was authorized by the corp- oration. But it is error to reject an offer to show a release by the corpora- tion, De facto officers.— McGargell v. Hazleton Coal Co., 1842, 4 W. & S., 424. Evidence is admissible in an action against a corporation, that the person who did the act upon which suit is brought was an officer de/acto. Same— Act imposing liability to penalty .—McGargell v. Hazleton Coal Co., 1842, 4 W. & S., 424. The illegal acts of an officer de facto render the corporation liable for the penalty therefor. Part J.] OFFICE AND OFFICKES. 285 Hazleton Coal Co. v. Megargell, 1846, 4 B., 324. There is no presumption of the special authorization by a corpoiation of an act of its officer beyond the scope of his general authority and which, if authorized by the corpora- tion, would render it liable to a penalty therefor ; to render the corporation liable, such special authority must be proven. Ratification of acts of officers and agents.— Crum's Appeal, 1870, 16 Sm., 474. Where the directors of a corporation have no power to do a cert- ain act, their ratification of such an act by an officer of the corporation is in- effectual to bind the other stockholders. Lewis ®. Philadelphia Axle Works, 1875, C. P., 1 W. N. C, 327. An un- authorized act by an of&cer of a corporation may be ratified by the failure of the stockholders to disavow it within a reasonable time. Fraud.— National Fiie Ins. Co.'s Estate, 1880, C. P., 8 W. N. C, 436. The fraud of officers and agents of a corporation will be imputed to the corp- oration itself where the latter, after obtaining full knowledge of it, retains the fruits thereof. Same — In sale of goods. — Erie City Iron Works «. Barber, 1884, 10 Out., 125. The rule that a vendor of goods is liable to the purchaser for fraudu- lent representations made by his a^ent acting within the scope of his au- thority applies to corporations as well as to natural persons. The deceit of a corporation's president and manager in such a caae is the deceit of the corporation. Contracts made in violation of charter provisions as to form. — Hazlett V. Ins. Co., 1874, C. P., 1 W. N. C, 24. Where the charter of an insurance company provides that all contracts of insurance made by it shall be in writing or print, under the corporate seal and signed by the presi- dent, a verbal contract of insurance by an officer of the company is vMra rires. See also Graham v. E. Co., 1874, C. P., 1 W. N. C, 40; Hanson v. E. Co., Id., 7. Act prohibited hy by-law— Usage. — Chambersburg Ins. Co. V. Smith, 1849, 1 J., 120. Where supervision of the transfer of stock has, by their uniform practice, been entrusted by the directors of a corporation to the secretary and such practice thereby becomes a tacitly adopted rule of the company, of which the public has notice and upon which the public acts, a transfer permitted by such officer is binding upon the corporation not- wlthstandingthat an unenforced by-law might be construed as prohibiting it. Agency for other party.— Wright's Appeal, 1883, 3 Out., 425. A corp- oration cannot be held liable for the unauthorized act of its president in ob- taining genuine stock from a holder, giving the latter his personal due bill therefor, transferring the stock under a power of attorney and subsequently issuing to such former holder certificates of an equal number of shares of fraudulently over-issued stock. In such a transaction the president, acting under a power of attorney, is merely the agent of the other parly. Mallciousprosecution.—Fentoni;. Sewing Machine Co., 1874, D. C, 31 li. Int. 132 9 Phila., 189. An action for malicious prosecution will lie against a corporation aggregate. The malicious prosecution is that of thu corporation when it was originated and carried on by its chief officer in its beMlf with its knowledge, and for its benefit. No formal authorization of the prosecution is necessary to impose liability. Trespass vi et armis— lijecting with unnecessary violence,— Weiler V Penna. E. Co., 1883, C. P., Allegheny, 29 Pitts. L. J., 347. An action of trespass vi el armis cannot be maintained against a corporation for the use by its officers of unnecessary violence in ejecting an intruder from its premises ; the remedy is against such officers individually. Receiving conditional subscription,— Pittsburgh & Connellsville Eail- road Co v. Stewart, 1861, 5 Wr., 54. The president of a corporation has power to receive after the organization of the company a conditional sub- 286 OFFICE AND OFFICEES. [Part I. scription, and binds the corporation thereby, especially when his act is rati- fied by the board of directors. Negligence— Liability to employe.— Ardesco Oil Co. d. Gilson, 1869, 13 Sm., 146. A corporation is liable in damages to its employ^ for injuries sustained through the negligence of its president acting within the scope of his official functions, e. g., where he personally superintends the erection of a work, by reason of negligently permitted imperfections in which the em- ploye's injury occurred. See also Frailer v. Penna. Kailroad Co., 1860, 2 Wr., 104. Issue and transfer of negotiable paper. — Pittsburgh & Baltimore Coal Co. V. Allegheny National Bank, 1877,34 L. Int., 313, 25 Pitts. L. J., 18. Money received and used by a corporation upon the security of a note in the corporate name which is void by reason of want of authority in the officer who signed it, may be recovered from the corporation under the common counts. Montour Iron Co. v. Coleman, 1856, 7 C, 80. In an action against a corp- oration upon a bill of exchange drawn upon, and accepted by " A. B., Pres- ident of,'' etc., the corporation is bound to put in an affidavit of defence. The record in such a case raises a necessary implication that the corporation is the real promisor. Dougherty v. Hunter, 1867, 4 Sm., 380. Where the president of a corpor- ation customarily acts as its business agent with its knowledge and without objection, making sales, settling accounts and collecting debts, and actua authority so to do may therefore be inferred, the corporation will be bound by the president's acceptance in extinguishment of a debt due the corpora- tion of a note made payable to xhe president in his individual name, with- out official designation, where the proceeds of the note go to the credit of the company. Union Canal Co. v. Lloyd, 1842, 4 "W. & S., 393. Checks purporting to have been drawn by the president of a corporation fifty years previously in favor of contractors with the corporation are admissible in evidence to show that the drawer acted as president. See further II and III, infra, and as to biUs and notes generally. Bills AND Notes. II« Po^rers and R.ig:lits of OflBcers. Competency of officer as witness, see IV.. When officers will not be enjoined from acting— Insolvency— Fraud. — Gormerly v. Building Association, 1876, C. P., 3 W. N. C, 11. The in- solvency of a corporation does not dissolve it, and where its organization is nominally maintained, equity will not interfere to appoint a receiver and enjoin the acting officers. See also Germantown Rwy. Co. v. Fitler, 1860, 10 Sm., 124, and Seitziuger v. Oil Co., 1873, C. P., Schuylkill, 1 Leg. Chron., Rowlands v. Building Association, 1879, C. P., Lackawanna, 1 Lack. Leg. Kec, 456. An injunction against a corporation and its officers will not be granted on a showing of fraud on the part merely of its former officers. Right to delegate power.— Middletown Turnpike Co. V. Watson, 1829, 1 K., 329. The treasurer of a corporation has no right to delegate his powers to another agent of the corporation without the permission of the board of managers. Contract involving alienation.— Junction Railroad Co. V. Pennsylvania Railroad Co., 1875, 2 W. N. C, 277. The chief officer of a corporation has Part I-^ OFFICE AND OFFICERS. 287 no power to make any contract involving the aliening of any of the corpora- tion's property or franchises. The corporation cannot be equitably estopped by such an act. Release of debt due corporation.— Moshannon Land Co. v. Sloan, 1885 13 Outer., 532. An ofllcer of a corporation has no power to release a debt due it, without express or clearly implied authority. De facto officers. — Batterson V. Thompson, 1871, C. P., 8 Phila. 251 28 Leg. Int., 172, 3 Leg. Gaz., 173. Officers defaeto may legally act ' ' Woodward v. The Church, 1884, C. P., 14 W. N. C, 240. The de facto officers of a corporation are entitled to represent it in legal proceedings. Same— Loss of integral part. — Lehi,;h Bridge Co. v. Lehigh Coal & Nav. Co., 1833, 4 E., 8. The loss of an integral part of a corporation works an entire dissolution only where the consequence of such loss is a perman- ent incapacity to restore the deficient part.- Where such loss can be sup- plied by officers defaeto, the corporation's existence is sustained as to strangers See also Eose ». The Turnpike Co., 1834, 3 Wts., 46. Partial assignment for preferred creditors.— Dana v. Bank of United States, 1843, 5 W. & S., 223. Directors who are given power in general terms to ■ ' manage the aflFairs " of a corporation may assign a jjortion of the effects of the corporation in trust to pay certain preferred creditors thereof, without obtaining the assent of the stockholders. Assignment for creditors by de facto officers. — Inland Insurance Co. V. Good, 1876, C. P., Lancaster, 8 Lane. B., 117. A voluntary assignment ot a corporation for the benefit of its creditors cannot be impugned in a suit by the assignee a^inst a debtor of the corporation on the ground that the as- signment was made by only defaeto officers whose regular term of office had expired. Power to commence suit.— Citizens' Baukc. Keim, 1875, 10 Phil., 311, 1 W. N. C, 263. Where a by-law of a bank provides that the president shall have under his supervision all debts which may remain due and un- paid, and recommend to the board of directors such proceedings as shall be requisite for their settlement, the power to institute and control proceed- ings for the collection of such debts is impliedly reserved to the directors, and the president cannot, on his own authority, give a power of attorney to commence suit. Twelfth Street Market Co. ■». Jackson, 1883, 6 Out., 269. Where a by-law gives to the president of a corporation '" the general charge and direction of the business of the company as well as all matters connected with the inter- ests and objects of the corporation," that does not include the authbrity to do an act which by another by-law is expressly given to a standing commit ■ tee : reoerging 13 W. N. C, 190, 39 L. Int., 383. Confession of judgment. — Hardiman v. Philadelphia Association, 1876, C. P., 2 W. N. C, 440. An officer of a corporation has no power as such to confess a judgment against it. Compensation of officers — Quantum meruit. — Kilpatrick v. Penrose Ferry Bridge Co., 1865, 13 Wr., 118. The compensation of corporate officers must, to support a recovery against the company, be fixed by express con- tract. There can be no recovery on a qvmntum meruit. Same — ^Eztra compensation. — Carr v. Chartiers Coal Co., 1855, 1 C, 337. One who is employed as an officer of a private corporation at a fixed salary cannot recover extra compensation for services in that capacity. Same— Statute prohibiting payment of salaries— Constitutional law. — Ehrenzeller v. Union Canal Co., 1829, 1 E., 181. A statute prohibit- ing the payment of salaries to the officers of a corporation until the re-com- mencement of the work for which the corporation was formed is not uncon- stitutional as affecting a secretary who holds his office at the pleasure of the managers. Lease of Penna. office for foreign corporation,— Steamboat Co. v. Mc- 28S OFFICE AND OFFICERS. [Part /. Cuteheon, 1850, 1 H., 12. To contract for the lease of an office in Pennsyl- vania for the transaction of the business of a foreign corporation is within the scope of the ordinary authority of the president of such corporation. Claim of set-off by treasurer. — Russell v. Presbyterian Church, 1870, 15 Sm., 9. The treasurer of a corporation cannot set od an independent claim against the corporation when sued for money in his hands as treasurer. Amotion.— Batterson v. Thompson, 1871, C. P., 8 Phila., 251, 28 Leg. Int., 172, 3 Leg. Gaz., 173. A power of amotion does not pass by a grant of power to elect, as incidental to the latter, but must be expressly reposed in the electing body by the charter. Comm. V. Philips, 1880, C. P., Union, 11 Lane. B., .195, 1 Del. Co., 41. A corporate officer cannot be removed without a full legal trial. Comm. V. Philips, 1880, C. P., Union, 11 Lane. B., 195, 1 Del. Co., 41. Quo wairanto is the proper remedy for unlawful amotion from a corporate office ; mandamus does not lie. Appeal from award. — ^Washington & Pittsburgh Turnpike Co. v. Crane, 1822, 8 S. & E., 517. A mere authorized agent of a corporation who is neither president, chief officer, cashier, treasurer nor secretary, has no power under the Act of March 22, 1817 to enter an appeal from an award of arbitrators. See also Schuylkill Navigation Co. v. Thomas, 1825, 8 S. & E., 431. Suit against corporation— Demand on inferior of&cer to make affi- davit of defence. — Singerly «. Harrisburg Printing Association, 1871, C. P., Dauphin, 2 Pear., 110. ^wry :. whether the chief officer of a corporation, who sues the latter on his individual claim, can call on its inferior officers to make an affidavit of defence. Buying up claims against corporations. — Hill v. Frazier, 1853, lo H., 320. The officers of a corporation are held to the same rules of good faith which govern other agen&. An officer cannot buy up claims against the corporation and maintain suits upon them. See farther DiBECTOBS. Same— Participation as creditors after corporation's assignment.— Craig's Appeal, 1880, 11 Nor., 396. After an assignment by an insolvent corporation its officers may buy up outstanding claims against it, and, al- though they are stockholders and by the act of incori>oration are made liable for an amount equal to their subscriptions, they may participate in the dis- tribution to creditors. As stockholders they are not sureties. See also National Loan & Building Society «. Lichtenwalner, 1882, 4 Out., 100. Inland Insurance'Co. 's Estate, 1877, C. P., Lancaster, 9 Lane. B., 119. An officer of a corporation which has been rendered insolvent by mismanage- ment is entitled to participate as a creditor in the distribution of the assigned estate where he has been guilty of no fraud in fact or law. Same— Preference in insolvency.— Hopkins' Appeal, 1879, 9 Nor., 69. The officers and directors of an insolvent corporation cannot gain a prefer- ence over other creditors of the corporatioA by executing notes of the corpor- ation in their own favor, obtaining judgment by default and issuing execu- tion upon them. Such conduct of the officers is a constructive fraud ; and, moreover, under the Act of April 7, 1870, in such case distribution is to be made as in cases of insolvency. Issue and transfer of negotiable paper. — Mechanics' Bank v. West Phil- adelphia Eailway Co., 1878, C. P., 5 W. N. C, 290. The officers of a corp- oration have an implied power to issne notes. Batt«. Pennsylvania Globe Gas Light Co., 1886, C. P., 43 L. Int., 86. An acceptance by the treasurer of a corporation in his official capacity is within a rule of court, providing that in any action upon a bill it shall not be neces- sary for a plaintiff who has filed a copy etc. to prove on the trial the accept- ance unless the defendant by affidavit etc. has denied the latter. The plain- tiff is not bound to prove the treasurer's authority to accept unless the de- fendant has by affidavit denied i%. Part /.] OFFICE AND OFFICERS. 289 Same — ^Directors' purchase of accommodation note. — Holmes v. Paul, I860, 3 Gr., 299, 5 Clark, 461. A member of the board of directors of a corporation, one of its finance committee, may purchase a note given by an individual for the accommodation of the corporation, and recover against the maker, where he was not the agent of the company to sell the note. Same — OfB,cer's issue of note to himself. — Denlinger w. Monitor Oil Co. , 1880, C. p., Venango, 28 Pitts. L. J., 212. One acting as president of a corporation cannot without the consent of the corporation give a binding note in the name of the company to himself and others of the corporators. Judgment entered by virtue of a power of attorney in such a note will be stricken off at the instance of a corporator without whose consent the note was given. See also I, swpra, and, as to bills and notes generally, Bills and Notes. Director's contract with corporation— Presumption of knowledge of officers' powers. — Huntzingero. National Fire Ins. Co., 1877, 34 L. Int., 313. A director of a corporation in dealing with it as an independent con- tracting party will be held to a strict knowledge of the powers of the offic- ers vrith whom he makes the coatract. III. Liabilities of Officers. Conversion to use of corporation.— Barton v. Willey, 1875, 2 W. N. C, 1.57. An officer of a corporation who unlawfully takes and converts goods to the use of the corporation is personally liable therefor unless it be shown that his act was authorized by the corporation. Ejecting intruder with unnecessary violence— Trespass.— Weiler v. Penna. E. Co., 1882, C. P., Allegheny, 29 Pitts. L. J., 347. An action of trespass vi et armis cannot be maintained against a corporation for the use by its officers of unnecessary violence in ejecting an intruder from its premises; the remedy is against such officers individually. Signing lottery ticket for corporation.— Passmorej). Mott,l809, 2Binn., 201. The secretary of a corporation who signs a lottery ticket for the corp- oration, is not personally liable to the holder. Promissory note by officer— Disclosure of principal's name.— Fisher V Ehoads, 1860, 4 Phila., 94, 17 L. Int., 228. The principle that when r.n agent discloses the name of his principal, he is not personally liable to the party with whom he deals, thongh he may give a note in his own name, ap- plies to transactions by officers of corporations. "Whether such a note was given and received as the note of the company, is a question for the jury. Indorsement by officer.— Seyfert v. Lowe, 1877, C. p., 4 W. N. C. 560 Indorsement of a promissory note by an officer of a corporation in his official capacity does not render the indorser personally liable. Affirmed: 7 W. N. C, 39. Note by directors for use of company— Contribution,— Slaymaker v. Gundacker 1823, 10 S. & E., 74. If the directors of a corporation become the makers and indorsers of a note on which money is borrowed for, and applied to the use of the company, they are mutually responsible to each other, and if one of them pays it, the others are liable to contribution. Form of sealed instrument.— Hoskins v. Mehafiy, 1824, 11 S. & E., 126 Where in the body of a sealed instrument the covenants are stated as thoueh made directly by a corporation with the plaintiff, but it is signed and fealed with the seal of the president, who is duly authorized to enter into the contract as the corporation's agent, the latter is not personally lia- ble upon it. 19 — MUBPHY. 290 OFFICE AND OFFICERS. [Part I. TV, miscellaneous. Incompatible offices— Act of March 31, I860.— Comm. v. Christian, 187-3, 9 Phila., 556, 29 L. Int., 341. A mere agent of a private corporation (such as a soliciting agent of an insurance company) is not an "officer" within the meaning of Section 66 of the Act of March 31, 1860. College professorship- Quo warranto. — Philips «. Comm., 1881, 20ut., 394. A professorship in an incorporated college is not an ofSce. Quo warranto does not lie to determine the right thereto : reversing 11 Lane. B., 195, 1 Del. Co., 41. From whom office is held. — Ehrenzeller r. Union Canal Co., 1829, 1 R., 181. The secretary of a canal company is an officer of the corporation and not of the managers, although appointed by the latter. Attachment of moneys in hands of corporate officers. — Muhlenberg V. Eiler, 1878, C. P., Berks, 7 Luz. Leg. Keg., 151, 1 Leg. Chron. E., 248. Moneys in the hands of the trea.surer ot a corporation, held in his fiduciary capacity as treasurer, cannot be attached in execution against the company. Frank v. Polytechnic College, 1875, C. P., 2 W. N. C, 244. An attach- ment sur judgment will not be quashed upon the sole ground that the gar- nishee is an officer of the corporation defendant. It may be shown what as- sets the garnishee holds and in what manner he holds them. Noticeto officer, when notice to corporation.— Wilson v. McCullough, 1854, 11 H., 440. It seems that in a transaction which does not fall within the circle ojf the ordinary duties of a particular officer of a corporation, but is peculiar and extraordinary, notice to such officer, when not communi- cated by him to the corporation, is not notice to the latter. See further, as to notice to directors. Notice, III. Assignment of securities by president — Noticeto purchaser of own- ership. — Garrard v. Pittsbgh. & Connellsville Railroad Co., 1857, 5 C, 154. A party receiving from the president of a corporation, as collateral security for an antecedent individual debt owing to him by such president, a, bond payable to the corporation, endorsed with a blank assignment the language of which imports the authority of the directors and therefore that an as- signment is to be made by the president only for the purposes of the com- pany, is not a iona fide holder without notice. The general rule is that the possession of the securities of a corporation by its chief officer is the posses- sion of the corporation : affirming 1 Crumriue, 378. See also Pittsbgh. & Connellsville Railroad Co. •». Barker, 1857, 5 C, 160. Competency of officers as witnesses. — Phila. Ins. Co. v. Washington Ins. Co., 1854, 11 H., 250. A salaried officer of a corporation, not a stock- holder and not a party to the record, is a competent witness for the corpora- tion in a suit against it. Maule V. Partridge, 1863, D. C, 3 Luz. Leg. Obs., 180, 5 Leg. & Ins. Rep., 66. The treasurer of a corporation who is the payee and indorser of a promissory note is a competent witness in a suit by the indorsee against the maker. Subpoena duces tecum to produce corporate books.— Monroe v. Build- ing Association, 1883, C. P., 14 W. N. C, 107. An officer of a corporation (annot be compelled to produce the books of the corporation in answer to a subpoena duces tecum, until they have been identified and it has been made to appear by testimony that they are under the custody and control of the witness. Lorenz v. Lehigh Valley Navigation Co., 1873, D. C, 5 Leg. Gaz., 174. It seems that when the production of the books or papers of a corporation be- fore a commissioner to take depositions is necessary and proper a subpcena duces tecum will be issued to the officer having the custody of them and he will be compelled to produce them, whether he has authority so to do fiom the board of directors or not. Part /.] OFFICE AND OFFICEES — OPTIONAL PEIVILKGS. 291 Preventing expelled member from resuming rights — Conspiracy.— McLafferty v. Sweeney, 1887, 19 W. N. C, 396. An expelled member who has been restored to membership by a decree of court cannot jesume his rights without producing and serving upon the officers the decree ; his simple declaration thereof is not suflScient. The officers' opposition under such circumstances to his resumption of his rights is not conspiracy. Denial that person served with writ is officer. -Moran v. Connells- ville Coal Co., C. P., Allegheny, 2 Schuylk. Leg. Eec, 278. Service re- turned as made upon the proper officer of a corporation will not be set aside three months later upon an affidavit that the person served is not an officer of the company. Official bonds— Failure of principal to sign. — Bank of Northern Liber- ties V. Cresson, 1824, 12 S. & R., 306. Where the act under which a corpor- ation is chartered makes it the duty of the board of directors to take from the corporate officers such bond for the faithful performance of their duties as the by-laws may prescribe, and a by-law is passed directing that a certain officer shall give bond in a certain sum with one or more sureties etc., a bond given by two sureties alone without including the' principal as one of the obligors is binding upon the sureties and will support an action thereupon against the latter. Same — ^Action upon, — Set-off. — Fields v. Kershaw, 1880, C. p., Dela^ ware, 1 Del. Co., 103, 13 Lane. B., 68. The treasurer of a corporation can- not, nor can his sureties, in an action on the bond given for the faithful per- formance of his official duties, set off a claim due him as a corporator by the company. Same— Forfeiture of charter and subsequent revival.— Bank of Washington v. Barrington, 1830, 2 P. & W., 27. Where the charter of a corporation is forfeited, but subsequently by act of the Legislature "re- vived and continued in as full force and ample a manner as if no forfeiture had taken place," the sureties upon the bond of an agent or officer of the corporation, given before the forfeiture, are discharged by the latter, and cannot be held liable for any default of their principal occurring after the corporation is revived. Where in such case the forfeiture was produced by the omission of an act which it was the principal's duty to perform, the sureties are liable for the loss accruing from'such forfeiture, but their liability is limited to that loss alone. Oath by officers upon bill for discovery.— Bevans v. Turnpike Co., 1849, 10 B., 174. Upon a bill against a corporation to compel discovery of assets the required oath is to be elicited by joining the officers. OPINIONS. Of witnesses as to market value of land, see Eminent Domain, IV, 4. OPTION. To gubscriiefor additional stock, see Principal and Income. OPTIONAI. PRIVILEGES. Of corporations ; acceptance of, see Acceptance and Assent ; non-user of, as ground for forfeiture of charter, see Charter, V. 292 OEDEK — OWNEKSHIP. [Part I. ORDER. For payment of money, when not a bill of exchange, see Bills and Notes, II. " Store orders," redemption of, by notes of corporation, see Id., I. ORDIPIATICBS. Of municipality, liability of corporation to, see Liabilities and Duties of Corpora- tions. ORGAXIZAXIOX. See also Creation of Corporations, Reorganization. IlUUnction to restrain, — Mitchesou«. Harlan, 1859, C. p., 3 Phila., 385, 16 L. Int., 148. Equity has no power to restrain the organization of a corj)- oration to which letters paten t have been issued. Fully established fraud in the sale of stock by the commissioners appointed to organize the company cannot give such power. Fraud by subscription commissioners— Organization by minority.— Ciomm. V. McKean County Bank, 1858, 8 C, 185. Where a majority of com- missioners appointed by act of Assembly to organize a corporation enter into a fraudulent agreement with a citizen of another State to transfer the fran- chise to him or to obtain for him a control of the majority of the capital stock, refusing to give to all who choose an equal chance to subscribe, the minority may separate from them and proceed with the organization as contemplated by the statute ; and the letters patent issued to them are valid. Not necessary to perfect corporate existence. — Grubb v. Mahoning Navigation Co., 1850, 2 H., 302. A corporation comes into being at the moment when the letters patent are issued ; the subsequent formal organi- zation by the election of officei's is not necessary to perfect the corporate ex- istence. Corporate existence is sufficiently established by averment and proof of the act of Assembly providing for the incorporation, the certificate of the commissioners and the letters patent ; subsequent formal organization need not be .shown. Laws of another State regulating,— Conflict of laws.— Grant v. Henry Clay Coal Co., 1876, 30 Sm.. 208. The courts of Pennsylvania are bound by the decisions of the courts of a sister State in relation to the organization of a corporation under the laws of that State.. OVER-ISSUE OF STOCK. See Stock and StockholderA OMTIVERSHIP. Of stock, see Stock and Stockholders, I. Of land taken by corporation, inquiry i Eminent Domain. Of securities by corporation, constructive notice of, see Notice. Of land taken by corporation, inquiry into title of petitioner for damages etc., see Eminent Domain. ■P<"^ ■''•] PARTIES— PENALTIES. 293 PARXIES. See Action and Suit. PARXXERSHIP. Taxation of partnership interests owned by foreign corporations, see Foreign Corp- orations. Action mistakenly brought as against unincorporated association, see Pleading. Oak Eidge Coal Co. v. Eogers, 1884, 16 W. N. C, 355. A limited partner- ship association organized under the Act of Jtme 2, 1874 is so far a " corpor- ation " that it may be sued und«r the Act of May 8, 1876 for mining coal upon the lands of another. Archer v. Rose, 1869, C. P., 3 Brewst., 261. A firm can maintain a hill against directors although one member of the firm is a director and a defend- ant. Geyer v. Insurance Co., 1867, D. C, ■ Allegheny, 3 Crum., 41, 14 Pitte. L. J., 266. A corporation is entitled to its lien upon stock owned by an indi- vidual to secure a debt owing to the corporation by a firm of which the owner is a member. PAR VALVE. Reduction of, by supplement to charter, see Stock and Stockholders. As related to taxation, see Taxation. PAYMENT. Of subscriptions for stock, see Subscription. Of corporate bonds and coupons, see Bonds. Of assessments on, or instalments of «tock, see Stock and Stockholders. Of consideration of corporation's contract in stock, see Contract, V. PEKiAI^XIES. For failwe of corporation to make return to taxing officers of Commonwealth, see Taxation. Corporations' liability to, for acts of officers. — Hazleton Coal Co. ». MegargeU, 1846, 4 B., 324. There is no presumption of the special authori- zation by a corporation of an actof its officer beyond the scope of his general authority and which, if authorized by the corporation, would render it lia- ble to a penalty therefor ; to render the corporation liable, such special au- thority must be proven. 294 PENALTIES — PERSONAL SERVICE. [Part I. Comm. V. Ohio & Pennsylvania Railroad Co., 1856, 1 Gr., 329. A servant of a corporation who does an act punishable by a penalty is personally re- sponsible for it unless it be shown that his act was authorized by the corp- oration. There is no prima facie presumption that he was so authorized. McGargell v. Hazleton Coal Co., 1842, 4 W. & S., 424. The illegal acta of an officer de facto render the corporation liable for the penalty therefor. Illegal tolls. — Comm. V. Allegheny Bridge Co., 1852, 8 H., 185. It seems that if a corporation charge illegal tolls for the use by the public of its works, the penalty is by fine, and not by forfeiture of its charter. Issuing small notes— Acts of April 12, 1828 and March 29, 1785.— Allegheny City v. McClurkan, 1850, 2 H., 81. A suit against a corporation for issuing small notes prohibited by the Act of April 12, 1828 is not sub- ject to the provisions of the Act of Mar. 29, 1785, as to the time within which suits for the recovery of forfeitures upon any penal act of Assembly may by brought ; the 20 per cent, recoverable under the Act of 1828 upon judgment for the plaintiff is not a forfeiture incurred by the act of issuing the notes. For non-payment of instalments of stock— Notice to holders.— Mc- carty V. Selinsgrove &c. Railroad Co., 1878, 6 Nor., 332. Where an act of incorporation provides that public notice of calls shall be given tor a certain length of time before the time for payment, such notice is necessary, not only to enable the corporation to enforce the penalties for non-payment, but to enable it to maintain an action upon the contract of subscription. Grubb V. Mahoning Navigation Co., 1850, 2 H., 302. In an action to re- cover the amount of a, subscription proof of notice to pay is not necessary to a recovery ; such notice is necessary merely to subject the stockholder to the penalty for non-payment. See also Gray v. Monongahela Navigation Co., 1841, 2 W. & S., 162. Gray v. Monongahela Navigation Co., 1841, 2 W. & S., 156. A misnomer of a corporation in its notice to stockholders to pay instalments is imma- terial where such notice was necessary merely to subject the subscribers to a penalty for default, and, in the action for snch instalments, the x>enalty is waived. Same— Abolition of penalty for non-payment of instalments— Sub- scription— Constitutional law.— Custar V. Titusville Gas & Water Co., 1869, 13 Sm., 381. A provision in a charter that upon failure to pay an in- stalment of stock when it is called for, the corporation may, after the expir- ation of thirty days from such, demand and failure, add five per cent, per month to the instalment, is not a part of the contract of subscription, but is a penalty ; and a statute abolishing it, passed after a contract of subscription has been made, is not unconstitutional as impairing the obligation of that contract. Statute imposing personal liability on stockholders not a penal stat- ute.— Aultman's Appeal, 1881, 2 Out., 505. A statute which provides that the stockholders of a corporation shall be personally liable to creditors to the extent of the amount of their subscription is not a penal statute, and therefore a statute of another State making such a provision, is enforceable by the courts of this State. PERSONAL LIABILITY. See Individual LidbilUy. PERSONAL SERVICE. Of process, see Service. Parti.'] PETITION — PLEADING. 295 rETITIOI*. For viewers to assess land damages, see Eminent Domain. For dissolution of corporation, see Dissolution. For mandamus, see Mandamus. PLACE OF BUSINESS. Of foreign corporations, see Foreign Corporations. Service at corporation's, see Service. Sufficient statement of4n application for charter, see Creation of Corporations. PI trial as such, a corporation cannot, on a writ of error, take advantage of the action having commenced against them before a justice in their individual charac- ters. Action by treasurer instead of trustees. — Comfort v. Leland. 1837, 3 Whart., 81. Where the act of Assembly incorporating a company provides that each member of the company, his heirs and successors, shall pay to the trustees for the time being his proportion of certain expenses, an action against a member to recover such proportion need not be brought in the corp- orate name, but is properly brought in the name of the trustees ; and where brought in the name of the corjwration treasurer, as treasurer, it is error to refuse to permit the proper amendment. Misnomer. — Gray «. Monongahela Navigation Co., 1841, 2 W. & S., 156. The misnomer of a corporation plaintiflF must be taken advantage of by a plea in abatement. Kroberger v. Citizens' Bank, C. P., 1875, 2 W. N. C, 80. A corporation which has held itself out as of a certain name and contracted under such name cannot take advantage in an affidavit of defence of the fact that such name appears as the name of the defendant in the writ served upon it, al- though its proper name is, although similar to that used in the writ, differ- ent. Same— Name of contracting corporation— Latent ambiguity. — Berks & Dauphin Turnpike Co. v. Myers, 1820, 6 S. & E., 10. A departure from the strict style of a corporation will not avoid its contracts if it substantially appear that the particular corporation was intended ; and a latent ambiguity may, under proper averments, be explained by parol evidence. Same— Amendment— After judgment on award. — Marsh v. Wilkes- Barre, 1872, C. P., Luzerne, 1 Luz. Leg. Eeg., 173. Under the Amend- ment Acts of 1846 and 1842 a misnomer of a corporation defendant may be amended after a judgment on an award and the issue of execution, where the true imrty has been served, appeared by counsel and taken defence upon the merits. Same— Pendency of rule— Injunction.— Packer v. Snnbury & Erie Eail- road Co., 1852, 7 H., 211. That a bill in equity has not been property brought in the corporate name vrill not avail to prevent a preliminary in- junction, where a motion is pending to amend the bill by changing the name. Part /.] PLEADING POSSESSION. 2!)" Non est factum— Corporation's deed.— Turnpike Co. c. McCulloch, 1856, 13 L. Int., 93. Nothing but the plea oinon est factum can put iu issue the execution of a corporation's deed. Allegation of proper calls for instalments.— Bavington v. Pitts. & Steubenville Railroad Co., 1859, 10 C, 358. An allegation that calls for un- paid instalments were " duly made," is a sufficient allegation that they were made in conformity with the act of Assembly. Legality of corporation's entry on plaintiff's land— Amendment.— Pittsburgh Junction K. Co. v. MeCutcheon, 1886, 18 W. N. C, 527. A plaint- iff filing a declaration in an action for damages caused to his property by the construction of a corporate work in a manner alleged iu such declaration to be illegal may amend by adding a count proceeding upon the assumption that such construction was legal but seeking the recovery of consequential damages therefor. Bill in equity to compel issue of certificates for stock subscribed— Re- sponsive answer — Evidence to overcome, — Rowley's Appeal, 1887, 5 Am., 150., 19 W. N. C, 280, 44 L. Int., 309. Where a subscriber to the stock of a corporation, stated to be such in the certificate of incorporation, is refused certificates for his shares upon the ground of a collateral understand- ing that he was to be regarded as a mere figure head in the incorporation and that the stock standing opposite his name was to be virtually the prop- erty of other corporators ; and in an equity suit brought by him to compel the issue to him of such shares testifies that he subscribed for them ; and in- troduces in evidence the sworn certificate of incorporation showing such sub- scription ; an answer, acknowledging that the complainant subscribed, but setting up in defence the alleged understanding, though responsive to the bill, is overcome by the corroboration afforded to the complainant's testi- mony by the certificate. PLEDGE. Of etock, see Stock and Stockholders. POLIXICAI, CLUB. Charter for, refused, see Creation of Corporations, I. POSSESSION!. Corporation's right to possession of charter, see Charter, VI. Of securities iy chief officer, constructive notice of corporation's ownership, see Notice. Of certificates of stock, as entitling to transfer, nee Pouer of Attorney, Stock and Stockholders. Delivery of possession of mortgage, see Mortgage. Notice to quit, see Notice. 298 POWEK OF ATTORNEY. [/"art /, PO'WER OF AXTOR.NEY. Constituling attorney proxy to vote at corporate elections, see Elections ; as ratifying subscriptions, see Subscription. To transfer stock— Right of holder to demand transfer— Power ex- ecuted in blank. — German Union Building Association v. Sendmeyer, 1865, 14 Wr. 67. A corporation is bound to transfer stock upon the demand of a certificate holder who produces a power of attorney to transfer executed in blank The holder may fill up the blank. Same— To pay particular debt— Exhaustion of power— Subsequent transfer.— Denny V. Lyon, 1860, 2 Wr., 98. When a power ol attorney to transfer stock is given for the sole purpose of paying a particular debt, it is exhausted by its use for that purpose, and the owner is thereupon entitled to the return of the stock, notwithstanding that the attorney has subsequently transferred it under the power for another purpose by erasing the name first inserted and inserting another. Same — Omission to'sign transfer as agent. — Chambersburg Ins. Co. v. Smith, 1849, 1 J., 120. A stockholder empowered the secretary of the corp- oration in writing to transfer certain stock. In pursuance of such power the secretary made an entry of the transfer in the books, writing after such en- try, "See paper filed." The paper referred to was his power to transfer. This he wafered to the book, and attested the entry of transfer as secretary, omitting to sign the transfer as attorney. Seld that this omission did not vitiate the transtier. Same— President as attorney— Corporation not liable for acts of,— Wright's Appeal, 1882, 3 Out., 425. A corporation cannot be held liable for the unauthorized act of its president in obtaining genuine stock from a hold- er, giving the latter his personal due bill therefor, transferring the stock under a power of attorney and subsequently issuing to such former holder certificates of an equal number of shares of fraudulently over-issued stock. In such a transaction the president, acting under a power of attorney, is merely the agent of the other party. Same— Signatures thirteen years old— Corporation's duty of inquiry, — Pennsylvania Railroad Company's Appeal, 1878, 5 Nor., 80. It seems that the fact that the signatures to a power of attorney to transfer stock are thir- teen years old, is sufficient to put the corporation upon inquiry. See lurther, as to rights and liabilities of transferees of stock under pow- ers ot attorney, Stock and Stockholdees. President's power of attorney to commence suit. — Citizens' Bank v. Keim, 1875, 10 Phila., 311, 1 W. N. C, 263. Where a by-law of a bank provides that the president shall have under his supervision all debts which may remain due and unpaid, and recommend to the board of directors such proceedings as shall be requisite for their settlement, the power to institute and control proceedings for the collection of such debts is impliedly reserved to the directors, and the president cannot, on his own authority, give a power of attorney to commence suit. Attorney retained by only few of stockholders. — Brown v. Manufac- turing Co., 1850, D. C, 1 Phila., 73, 7 L. Int., 110. A rule to show cause why an inquest of damages should not be set aside and judgment opened will be discharged where it appears that the counsel who assumes to appear on behalf of the corporation asking for the rule was retained by only a few of the stockholders. In note issued by corporate officer to himself— Judgment on, — Ben- linger V. Monitor Oil Co., 1880, C. P., Venango, 28 Pitts. L. J., 212. One acting a.s president of a corporation cannot without the consent of the corp- oration give a binding note in the name of the company to himself and others Part/.] POWER OP ATTORNEY— POWEES OF COEPOEATIONS. 299 of the corporators. Judgment entered by virtue of a power of attorney in euch a note will be stricken off at the instance of a corporator without whose consent the note was given. Of agenia, officers, directors, members and stockholders, see those heads. Water powers, see Eminent Domain. PO'WERS AND RIGHTS OF CORPORATIONS. In exercising right of eminent domain, see Eminent Domain. Under lease of property of another corporation, see Lease. Sight to lien on stock for a holder's debt, sec Lien. Power to assess shares of stock, see Stock and Stockholders. m HigM to possession of charter, sec Charter, VI. Of foreign corporations, see Foreign Corporations. Questioning of corporate powers, see Charter, IV, 2 ; as to who may directly ques- tion them, see Quo Warranto. Repeal and forfeiture of, see Charter, V. See also generally By-laws, Charier, Elections, Liabilities and Duties of Corpora- tions. Contracts and acts beyond scope of powers, see Ultra Vires. How scope of by-laws must appear in proposed charter.— Supreme Temple, Order of Plato, 1885, C. P., 42 L. Int., 444. The powers asked for by a proposed charter must be precisely and accurately defined in the charter itself. They cannot be left to be determined by the form of constitution which the corporation may afterward adopt. Powers of corporation created under general law to be ascertained from statute rather than articles of association.— Booz's Appeal, 1885, 13 Out., 592. The privileges and powers of a corporation formed under a a general law are to be sought for in the statute rather than in the articles of association. When articles of association contain a provision inconsistent with the statutory provision upon the same subject matter, the corporation may, in due form, pass a valid resolution or by-law in conflict with such pro- vision of its constitution but in harmony with the statutory provision. A fortiori is this true when the by-law by which the corporation accommodates itself to the provisions of the general law contains nothing expressly pro- hibited by the terms of the articles of association. Charter at variance with general law— Corporation not deprived of rights given by latter. — Albright v. Lafayette Building Association, 1883, 6 Out., 411. Where the charter of a corporation formed under a general law contains provisions not authorized by the latter, all acts done in pursuance of such provisions will be void, but the corporation is not thereby deprived of the rights given by such act to corporations formed under it. Power to exercise lawfiil franchise not lost by mistaken exercise of power not conferred. — Emerson v. Comm., 1884, 12 Out., 111. A charter granting a lawful franchise will not be declared void although the only franchise exercised by the corporation be one which is not conferred, and therefore not legally exercised, but has been claimed under the actual grant, e. g. a, charter authorizing the manufacture of gas or the supply of light or heat, under the Act of 1874, See. 34, will not be declared void because the sole business carried on by the corporation is the supply of natural gas. 300 POWERS AND BIGHTS OF CORPOEATIOXS. [Part J. Ultra vires act done as agent. — Philadelphia v. Western Union Tele- graph Co., 1876, C. P., 2 W. N. C, 445, 11 Phila., 327, 33 L. Int., 129. A corporation cannot justify an act which under its own charter is -ultra vires by doing it jointly with another corporation possessing the power to do it, or by doing it as the agent of such corporation. Optional privilege must be acted on. — Girard College Rwy. Co. v. 13th & 15th Sts. Rwy. Co., 1870, 27 L. Int., 39S. A grant of a privilege of op- tionally extending a franchise will be treated as revoked when the option is not acted on for eleven years. Business foreign to ptirposes of creation. — Columbia Bridge Co. r. Kline, 1825, 4 Clark, 39, 6 P. L. J., 317. A corporation has no power to engage in business operations foreign to the special purposes for which it was created. Power to contract in other sovereignties.— Bank of Kentucky r. Schuylkill Bank, 1846, C. P., 1 Parsons, 180. By the comity of nations corporations have, within the limited scope of their powers, the same capac- ity to make, through their agents, contracts in sovereignties where they have no citizenship as have natural persons. But the power of a foreign corpor- ation to enter into any contract in question is to be ascertained in the adju- dications of tribunals of the state which created it. And it is permitted to exercise only those powers with which it is endowed by the latter. A provision that the stock of a corporation shall be transferable at such places as the president and directors shall prescribe is sufficient authority to the corporation to establish a transfer agency outside of the State of its crea- tion. Affirmed by the Supreme Court. Matthews v. The Trustees, 1869, C. P., 2 Brewst., 441, 7 Phila., 106, 26 L. Int., 140. A corporation has presumptively no legal existence out of the sovereignty by which it was created. The burden is upon the corporation, or those making the assertion, to show that it is permitted to maintain its corporate existence in such foreign sovereignty. In the absence of proof of such fact a corporation chartered by this State will be restrained by injunc- tion from carrying its assets beyond the borders of the State. What powers may be conferred by courts of common pleas. — Comm. V. Conover, 1873, 10 Phila., 55, 30 L. Int., 200. The courts of common pleas can confer only such powers and privileges as by the common law were necessary to constitute a corporation. Corporate powers to be construed strictly. — In the construction of grants of corporate rights a strict rule must prevail, and all legitimate pre- sumptions must operate in favor of the public rather than in favor of the corp- oration. A corporation takes nothing by its charter except what is unequiv- ocally granted therein. Wolf «. Goddard, 9 Wts., 544; Comm. «. Easton Bank, 10 B., 442; Penna. R. Co. v. Canal Commissioners, 9 H., 9; Dngan r. Bridge Co., 3 C, 303; Comm. -u. Erie & North East R. Co., 3 C, 339; Sonth- wark R. Co. v. Phila., 11 Wr., 314; Stewart's Appeal, 6 Sm., 413; Johnson V. Phila., 10 Sm., 445; Pittsbgh. & Counellsville R. Co. v. Allegheny, 13 Sm., 126; Diligent Fire Co. v. Comm., 25 Sm., 291; Penna. R. Co.'s Appeal, 12 Nor., 150; Pittsbgh. & Lake Erie R. Co. v. Bruce, 6 Out., 23; McMastersii. Reed,l Gr.,36; Attorney General v. Lombard &South Streets Rwy. Co., 1 W. N. C, 489; McMillan v. Mining Co., 12 Phila., 404, 35 L. Int., 163; North Penn. R. Co. V. Stone, 16 L. Int., 174; Wilkesbarre v. Coalville R. Co., 4 Luz. L. Rec, 279; Harrisburg Rwy. Co. v. Harrisburg, 2 Chest. Co., 333; Sunbury Ferry Co. v. Heim, 42 L. Int., 47, 4 Penny., 325, 33 Pitts. L. J., 37; Cass V. Manchester Iron and Steel Co., 29 Pitts. L. J., 210; Penna. R. Co.'s Ap- peal, 18 W. N. C, 418; Bergner v. Harrisburg, 1 Pear., 291; Shroder v. Lan- caster, 6 Lane. B., 200; Columbia Bridge Co. v. Kline, 4 CTark, 39; I'ittsbgh., Fort Wayne & Chicago R. Co. r. Pittsburgh, 1 Cmm., 392; Ashland Bank- ing Co. V. Centralia Savings Fund, 9 Luz. Leg. Reg., 41. Part 7.] POWERS and eights of oorporations. 301 Same — Conflict between claims of private and public corporations. — North Penna. Railroad Co. v. Stone, 1859, C. P., 16 L. Int., 174. oPhila., 421, 8 Am. L. Reg. (O.S.), 112. Where in a statute granting privileges to a private corporation it is sought to control general power given to a public corporation, the intention so to do must distinctly appear ; any ambiguity ■will be construed in favor of the public corporation. Northern Liberties v. Gas Co., 1849, 2 J., 318. Where there is an alleged conflict between au ordinance of a municipal corporation and a provision of the charter of a private corporation, any ambiguity in the charter of the latter must operate against the latter and in favor of the public. See also Philadelphia v. Western Union Telegraph Co., 1876, C. P., 2 W. N. C, 455. Same— Limitations of rule of strict construction.— Cleveland & Pitts- burgh Railway Co. v. Speer, 1867, 6 Sm., 325. Corporate franchises may be inferred as well as expressed. Bank of Kentucky v. Schuylkill Bank, 1846, C. P., 1 Parsons, 180. Al- though a corporation possesses no powers but those conferred by its charter, it possesses all the powers which those expressly granted iraplv. Affirmed by Supreme Court. " ' ' Whitaker v. Delaware & Hudson Canal Co., 1878, 6 Nor., 34. Although private charters a"re to be strictly construed, they will not be so construed as to defeat the grant. Where charter is joint act of two States.— Cleveland & Pittsbgh. RaiU way Co. V. Speer, 1867, 6 Sm., 325. A joint act of incorporation by two States is not only a contract between the States and the company, but a contract be- tween the States, and is to be liberally construed with reference to its ob- jects. Like a treaty, it is the law of the contracting States without being subject to interpretation by the local usage of either. Grant to insure performance of act beneficial to public. — Mononga- hela Bridge Co. v. Kirk, 1863, 10 Wr., 112. Where a corporate franchise is bestowed for the purpose of securing the performance by the corporators of a public act beneficial to the general community, the grant must be construed with reference to this purpose, and so as to enable that act to be done. Bight of alienation. — Burton's Appeal, 1868, 7 Sm., 213. It seems that the right of alienation belongs to a corporation as well as to an individual, where no restraint is imposed by the charter. Same — Transfer or lease of franchises. — Wood v. Bedford &c. R. Co., 1871, 8 Phila., 94, 28 L. Int., 53. A corporation has no power to lease its franchises unless specially authorized to do so by law. See also Pittsbgh & Connellsville R. Co. v. Bedford &c. R. Co., 1871, 32 Sm., 104. Wilmington & Beading Railroad Co. v. Berks County Railroad Co., 1878, 6 W. N. C. , 115. A transfer of corporate franchises in the nature of a for- feiture is ultra vires and cannot be enforced. Stewart's Appeal, 1867, 6 Sm., 413. A corporation cannot transfer its franchises to a private individual for the use and benefit of the latter. Philadelphia i;. Western Union Telegraph Co., 1876, C. P., 2 W. N. C, 455. In the absence of sjwcial legislative authority a corporation has no power to lease its franchises. An authority to lease its property does not give such a right. Cass V. Manchester Iron & Steel Co., 1881, U. S. C. C, W. D., Penna., 29 Pitts. L. J., 210. A corporation chartered for manufacturing purposes under the Act of 1874 has no power to lease its "plant" and thereby relinquish the exercise of its franchises to others. Power to hold land.— Baird v. Bank of Washington, 1824, 11 S. & R., 411. Where a bank is empowered to hold such lands as are bona fide mortgaged or conveyed to it in satisfaction of debts "previously contracted in the course 01 its dealing," it has a general power to commute for real estate debts really due, irrespectively of the necessity of the security. Eathbone v. Tioga Navigation Co., 1841, 2 W. & S., 74. After letters patent have been issued pursuant to an act of Assembly creating a corpora- 302 POWEBS AND BIGHTS OP CORPORATIONS. [Part 1. tion, the company is capable of receiving a conveyance of lands before it is organized and notwithstanding that such receipt necessitates the acceptance of terms and conditions in the deed. Bone V. Delaware & Hudson Canal Co., 1886, 18 W. N. C, 125. In an action of ejectment brought by a corporation the defendant cannot set up as a defence the general want of authority in the plaintiflf to hold such an amount of land as would be involved in the case. Such authority can be questioned only directly by the Commonwealth. Leazure v. Hillegas, 1827, 7 g. & E. 313. Conveyances to corporations of lands which corporations are not licensed to hold are not absolutely void ; both the title of the corporation and that of its grantee are merely defeasible by the Commonwealth. See also Goundie«. Northampton Water Co., 1847, 7 B., 233. Thompson v. Swope, 1855, 12 H., 474. A devise of lands lying in Penn- sylvania to a foreign corporation is valid, where it would be valid in the case of a Pennsylvania corporation, notwithstanding the laws of the State where the corporation was chartered prohibit it from taking by devise. Comm. V. New York, Lake Erie & Western R. Co., 1887, 19 W. N. C, 1, 44 L. Int., 178, 4 Am., 340. A foreign corporation cannot purchase the charter of a Pennsylvania corporation through the intervention of an indi- vidual agent secretly acting on behalf of such foreign corporation and there- by obtain the control and practical ownership of lauds in Pennsylvania which it is not authorized to hold directly ; and such lands are subject to escheat although the legal title to them is held by the Pennsylvania corpor- ation. Power to mortgage. — Fritchman's Appeal, 1882, 30 Pitts. L. J., 455. A corporation having the power to " take and hold land in fee simple and by lease," and to " sell or lease," has by implication the power to mortgage. Gordon v. Preston, 1833, 1 Wts., 385. A corporation which is empowered by its charter to acquire title to such real estate as may be necessary to the prosecution of Its business and "to sell or dispose of" the same, has power to mortgage it. St. John's Church v Steinmetz, ia'52, 6 H., 273. A mortgage under a corporate seal cannot be rendered inadmissible in evidence on the ground that, the title of the corporation in the land in question being inalienable, it had no power to mortgage, and that therefore the mortgage is not its deed. Eoberts v. Crystal Spring Water Co., 1881, C. P., Chester, 1 Chest. Co., 437. In an action of scire facias sur mortgage for land conveyed by the plaintiffe, upon a purchase-money mortgage, to the corporation defendant, the latter cannot set up as a defence that the mortgage was made without any compli- ance with the requirements of the General Corporation Law of 1874, as to the increase of corporate indebtedness. Limitations as to amount of property to be held. — Journalists' Fund, 1871, C. P., 8 Phila., 272, 28 L. Int., 220. A charter will not be approved when it contains no limitation of the amount of the real and personal estate to be held by the proposed corporation. See also Phila. Artizans' Assn., 1871, C. P., 8 Phila., 229, 28 L. Int., 13. Patterson Memorial Church, 1884, C. P. , 41 L. Int. , 253. A charter should contam a limitation upon the amount of the yearly income to be derived by the corporation from sources other than real estate. St. Paul's School Association, 1879, C. P., Schuylkill, 1 Schuylk. Leg. Kec, 133. The proposed charter for a corporation of the first class under the Act of 1874 need not contain any limitation upon the amount and value of the real estate to be held by the corporation. The limit is contained in the Act itself. ^ ^°^^^ ?" borrow money and issue obligations therefor.— First Bap- tist Church V. Caughey, 1877, 5 W. N. C, 421. A corporation possesses the implied power to borrow money for eflfecting the legitimate ends of its ex- istence. Part /.] POWEKS AND EIGHTS OF COBPOEATIONS. 303 Philadelphia & Reading Railroad Co. ■u. Stichter, 1882, 11 W. N. C, 325, 29 Pitts. L. J., SI 9. Private corporations possess the implied power to borrow money and issue obligations therefor. Such action needs no express legislative sanction. See also First Baptist Church of Erie v. Canghey, 1877, 4 Nor., 271; Penna. E. Co.'s Appeal, 39 L. Int., 98. McMasteis v. Reed, 1854, 1 Gr., 36. Corporations have power to bind themselves in any form of obligation entered into in pursuance of the powers expressly granted by their charters or necessarily implied therein, unless there be some statutory provision to the contrary. See also Hanson v. Rail- road Co., 1874, C. P., 1 W. N. C, 7; Graham v. Railroad Co., 1874, C. P., 1 W. N. C, 40. Same— Issue of irredeemable bonds at discount— Usury— Deferred stock.— Philadelphia & Reading Railroad Co. «. Stichter, 1882, 11 W. N. C, 325, 29 Pitts. L. J., 379. A corporation may, under a general power ta bor- row money, issue irredeemable bonds, at a large discount, not entitled to interest until after the common stock had received a dividend of six per cent., then to take all the revenues of the corporation up to six per cent., and then to rank with the common stock. Such a method of borrowing cannot be objected to on the ground that it is usurious or that it is an issuing of deferred stock. See contra McCaknont «. Philadelphia & Reading Railroad Co., 1881, U. S. C. C, 10 W. N. C, 338. Issue of bonds under Act of April 8, 1861.— Kemble v. Wilmington & Northern R. Co., 1878, V. S. C. C, 13 Phila., 469, 35 L. Int., 165. The Act of April 8, 1861 does not authorize a railroad company to issue bonds to its stockholders in proportion to their interests. It authorizes such an issue only for a new, valuable, adequate consideration, increasing the available funds of the corporation. Issue of negotiable paper. — Craig v. Richmond, D. C, 1 Phila., 33. Corporations possess, without special grant of authority, the power to issue negotiable instruments in matters within the sphere of their proper corporate action. See also Orr v. Mercer County Ins. Co., 1886, 4 Am., 387. Ashland Banking Co. v. Centralia Saving Fund, 1880, C. P., Columbia, 1 Kulp, 38, 9 Luz. Leg. Reg., 41. A corporation not incorporated for purposes of trade and the nature of whose business does not raise a necessary impli- cation that it should have power to put into circulation negotiable paper, has no such power. An order drawn by the president of such a corporation upon its treasurer for the payment of specific sums of money to the payee therein named is not a bUl of exchange. Same — ^Promissory notes of the nature of bank notes — Act of ]\Iar. 22, 1817.— Haale.ton Coal Co. v. Megargel, 1846, 4 B., 324. A certificate in the nature of a due bill, but of the essential nature of a promissory note, and printed in the form of a bank note, payable to A. or bearer, signed by the president and treasurer of a corporation and payable at the latter's office at a certain time after date, with interest, is within the Act of Mar. 22, 1817, 1 2, inflicting a penalty on the issue of promissory notes etc. in the nature of bank notes by an unauthorized corporation. Same — Redemption of " store orders " by notes — ^Act of April 21, 1849. — Reading Industrial Manufacturing Co. v. GraefF, 1870, 14 Sm., 395. The Act of April 21, 1849, prohibiting corporations from issuing obligations not redeemable in coin, does not prohibit a corporation from redeeming monthly by its notes orders issued by it upon a merchant for the supply of provisions to its employes. Such a mode of business is within the proviso of the Act. Discount.— Bright V. The Banking Co., 1882, 3 Penny., 478. The dis- count of notes by a corporation authorized by statute to invest its capital in notes and to purchase and hold securities in payment of the debts due it, is not ultra vires. 304 POWERS AND EIGHTS OP COEPOEATIONS — PKACTICE. [Part I. Payment of bonus for subscribing for stock. — Pittsburgh & Connells- ville Bailroad C!o. v. Allegheny, 1869, 13 Sm., 126. A corporation may, under a special legislative authorization, pay a bonus or premium to induce a particular subscription to its stock, e. g., in the case of a municipal sub- scription, by contracting to pay to the municipality or its creditors a sum equal to the interest on the bonds issued by the municipality in payment of the subscription. But such a contract will not be sustained where the special legislative authority is wanting. See Pittsburgh & Steubenville Bailroad Co. v. Alle- gheny, 1875, 29 Sm., 210. Consolidation — Act of May 16, 1861. — Comm. v. Pennsylvania & Western R. Co., 1884, 41 L. Int., 448. The Act of May 16, 1861 (P. L., 702) does not authorize the consolidation of any but railroad corporations, and an attempted consolidation by other classes of corporations is void. Assignment for creditors — Preference. — Dana v. Bank of United States, 1843, 5 "W. & S., 223. Unless restrained by its charter, a eorjTOration has the same power as a natural person to assign its property in trust forthe payment of preferred creditors. Mortgaging of leaseholds. — Lewis v. Philadelphia Axle Works, 1875, C. P., 1 W. N. C, 327. Corporations are within the purview of the Act of April 27, 1855 (P. L., 140), authorizimg the mortgaging 'of leaseholds. Powers of municipal reform association. — Ingham v. Reform Club, 1877, C. P., 34 L. Int. ,132. A corporation formed for the purpose of promoting municipal reform may lawfully use any means of attaining the end in view which would be lawful if it were a natural instead of an artificial person. Powers of purchasers of State Works. — Freeland v. Pennsylvania R. Co., 1870, 16 Sm., 91. It seems that the purchasers of the State Works were authorized to bringthe Works up to the highest degree of utility, and to such end might increase the height of dams. See also Liabilities and Duties or Coepobatioks. Want of objects upon which corporate powers may act. — Comm. v. Reliance Fire Co., 1874, 31 L. Int., 46. The want of objects for the time being upon which the powers of a corporation may be exercised does not ex- tinguish the corporate existence. E.g., the creation of the Fire Depart- ment of the City of Philadelphia did not operate as a dissolution of the ex- isting file companies. Incorporation with powers of another company— Liabilities.— Comm. V. Pittsburgh Forge & Iron Co., 1870, C. P., Danphia, 2 Pear., 374. Where an act of Assembly confers on a corjwration all the " powers, privileges and rights" enjoyed by another company which is required by its charter to pay a bonus into the State treasury, the former company is not thereby re- quired to paj the bonus. PR.ACXICE. See Action and Suil, Affidavits, Amendment, Appeal, Arbitration, Attachment, Discontinuance, Execution, Judgment, .Jurisdiction, Serrice, Trial. In production of testimony, see Evidence. In application for cliarter, see Creation of Corporations. In corporate elections, see Elections. In trial of members of corporations, see Disfranchisement. In assessment of land damages, see Eminent Domain. Part /.] PEEFEEEKCE — PBEFEEBED STOCK. 305 PRBFERE9ICE. In insolvency, see Insolvency. Of holders of assessed shares, in distribution of corporate property on dissolution, see Dissolution, IV. PREFERRED STOCK. Power to issue,— Assent of stocktolders.— Curry v. Scott, 1867, 4 Sm., 270. The Legislature may enlarge the powers of the managers of a corpora- tion (as by authorizing them to issue preferred stock) with the assent of the shareholders, and no one stockholder, by refusing his assent, can hinder the exercise of such enlarged powers. Hoffman v. Pennsylvania Warehouse Co., 1886, C. P., 43 L. Int., 250, 1 C. C. E., 598. Where the directors of a fully organized corporation with a paid in capital of $250,000, chartered before the adoption of the present Con- stitution, were authorized by its charter to increase its capital to $1,000,000 and to borrow money on bond and mortgage, they may, as a necessary in- ducement to the purchase of increased stock at par, the original stock being below par, issue preferred stock under the following terms : the owners of such stock to receive dividends, if earned, at legal interest before dividends are paid on the original stock ; the owners of the latter then to receive divi- dends, if earned, at legal interest ; and any surplus profits to be divided equally between the common and preferred stock ; provided that when the net earnings on all stock amount to seven per cent., one per cent, shall be placed in a sinking fund and invested until such fund amount to $100,000, when it shall be devoted to the redemption of the preferred stock in the in- verse order of issue, at par ; another sum of $100,000 to be thereupon col- lected and used in like manner, and so on until all the preferred stock shall be cancelled ; its holders to have the privilege of exchanging their stock, when called, for common stock ; the preferred stock to be offered pro rata to the holders of common stock. Bights of holders— "Consolidated preferred stock."— West Chester & Philadelphia R. Co. v. Jackson, 1875, 27 Sm., 321. The issue of preferred stock is a contract of loan between the corporation and the taker ; it is not designed as a permanent part of the capital, but is in the nature of a mort- gage upon the property of the corporation. The holders cannot be compelled to enter into a subsequent arrangement by which preferred and common stock are exchanged for "consolidated preferred stock." When the pre- ferred stock calls for dividends at a certain per cent, payable semi-annually, they must be paid before any dividends can be paid upon other stock, and the holder is entitled, when the dividends become payable, to interest for the whole period since the issue, notwithstanding astipulation that the div- idends shall be payable only ont of the net earnings of the corporation, that provision determining merely the time of payment. Holder's remedy assumpsit.— West Chester & Phila. E. Co. V. Jack- son, 1875, 27 Sm., 321. Asmmpsit is the proper remedy for a corporation s breach of its contract with respect to the payment of dividends on preferred Redemption of,— Land company— From what as^ts redeemaWe.— CulverTEeno Real Estate Co., 1879, 10 Nor. 367. Where a «al ^tete company issues preferred stock, agreeing to at all times apply any funds in ite treasury or rSulting Jfrom the sale of real estate to the redemption at par of any iSrtion oTthe sick upon demand by the holder, the latter has no rigW toKdemption out of any specific assets other than proceeds of sales 20— MUBPHY. 306 PEEFEERED STOCK — PEINCIPAL AND AGENT. [Pflrf /. of real estate, nor out of any uapney. in the treasniy, where the withdrawal of the funds for that purpose would interrupt or cripple the business of the company. Dividends — Taxation. — Comm. v. Reno Real Estate Co., 1875, 2 W. N. C, 181. Where a corporation- declares a dividend upon only its preferred stock, the common stock is not thereby rendered taxable. As to taxation of dividends, see Taxation. See Bonus. rHESENXIHENT. See Demand. PRESIDEMX. See Officers. PRESlJniPXIOI«S. See Evidence, II. Of acceptance of charier or amemdmeiU Utereio, or of provisions of staiiU:s, see Acceptance and Assent, I. Of assent of members to corporate acts, see Id., II. Of corporation's solvency, see Bankruptcy. Of knowledge, see Notice. Of character of corporation, see Kinds of Corporations. Of competency of witness as to market value of land, see Eminent Domain, IV, 4, 6. As to lionds, see Bonds. As in hills and notes, see Bills and Notes. Unconstitutional presumption of bondholder' s assent, see Constitutional Law, I, 3. PRINCIPAI, AND AGENT. See Agency. Part J.] PKINCIPAL, AND INCOME — PRINCIPAL AND SUEEIY. 307 PRINCIPAI^ ATilt IXCOIHE;. When profits, stock dividends etc. are to be considered principal, and when income, as between a legatee for life and remainderman of a testator's estate.— Earp's Appeal, 1857, 4 C, 368. For purposes of dis- tribution among beneficiaries in a will, entitled under its terms to the prin- cipal and to the income respectively of the testator's estate, profits in excess of the regular dividends upon stock owned by the testator, accumulated thereon at the time of his death, are to be considered principal, and profits so accumulated after his death are to be considered income ; and where profits are divided among the holders in the form of certificates of new stock, the character of the new stock is determined by the fund which it represents. Wiltbanks's Appeal, 1870, 14 Sm., 256. Where the income of certain stocks is given to a person for life and the stocks themselves to another, an increase of stock distributable among the stockholders upon payment of a certain sum is income. A sale of the right of subscription to such new stock stands upon the same footing. ^ Moss' Appeal, ^877, 2 Nor., 264. Where a corporation, under a special legislative authority, increases the limit of its capital stock, giving to each stockholder an option to subscribe at par for as many shares of the new stock as they held of the old ; and an executor holding shares formerly owned by the decedent, sells some of his options to purchase and with the proceeds purchases new stock, the latter is, as between a remainderman and a legatee for life, capital, not profits. See also Biddle's Appeal. 1882, 3 Out., 278; Condy's Estate, O. C, 1881, 10 W. N. C, 319. Vinton's Appeal, 1882, 3 Out., 434. Where a corporation sells part of its original firanchise and property and distributes the proceeds of the sale as a dividend among its stockholders, such dividend is as between a legatee for life and a remainderman of stock in such corporation, capital, not income — affirming 11 W. N. C.j 49, 15 Phila., 218, 38 L. Int., 12. Thomson's Estate, 1882, 11 W. N. C, 482, 15 Phila., 546, 39 L. Int., 208. Where a corporation purchases its own stock with profits earned since the death of a testator who has bequeathed stock in the corporation to one person for life with remainder to another, the proceeds of a purchase of such stock by the testator's trustees, under an option given by the corporation to its old stockholders, are income of the estate, not principal. Eastwick's Estate, O. C, 1882, 12 W. N. C, 67, 15 Phila., 569, 39 L. Int., 265. As between a legatee for life of corporate stock and a remainderman, a dividend earned by the corporation since the death of the testator who bequeathed the stock, is income, not capital. Where such a dividend is not payable in cash, but at the time of declaring it the corporation in- creases its capital, offers the option to subscribe to the new stock to its old stockholders and agrees to give credit for the amount of such dividends to those subscribing, the legatee for life will be decreed to be the owner of the new stock so subscribed for, to the the extent to which such dividend was used to purchase it. Comm. V. Western Union Telegrsiph Co., C. P., Dauphin, 1884, 15 W. N. C, 331, 41 L. Int., 194. Additional stock distributed among holders in proportion to the number of their shares is a stock dividend when it repre- sents surplus earnings invested in the corporation's plant and in leased prop- erty. A mere arithmetical increase of the shares, not representing earnings or profits, is not a dividend. PRINCIPAI, AND SURETY. Lien on stock — ^Debtor's surety. — Kuhns v. Westmoreland Bank; 1833. 308 PEINCIPAL AND SUEETY — PBIVATE CORPORATIONS. IPttrt I. 2 Wts., 136. A corporation's lien upon its stock innres to the benefit of the debtor's surety, and cannot be shifted by the corporation for the protection of a different debt than that for which the surety bound himself. Sureties on official bonds. — Bank of Northern Liberties v. Cresson, 1824, 12 S. & E., 306. Where the act under which a corporation is clart- ered makes it the duty of the board of directors to take from the corporate officers such bond for the faithful performance of their duties as the by-laws may prescribe, and a by-law is passed directing that a certain oflScer shall give bond in a certain sum with one or more sureties etc., a bond given by two sureties alone without including the principal as one of the obligors is binding upon the sureties and will support an action thereupon against the latter. Bank of Washington v. Harrington, 1830, 2 P. & W., 27. Where the charter of a corporation is forfeited but subsequently by act of the Legisla- ture " revived and continued in as full force and ample a manner as if no forfeiture had taken place, "the sureties upon the bond of an agent or officer of the corporation, given before the forfeiture, are discharged by the latter, and cannot be held liable for any default of their principal occurring alter the corporation is revived. Where in such case the forfeiture was produced by the omission of an act which it was the principal's duty to perform, the sureties are liable for the loss accruing from such forfeiture, but their liability is limited to that loss alone. Fields «. Kerahaw, 1880, C. P., Delaware, 1 Del. Co., 103, 13 Lane. B., 68. The treasurer of a corporation cannot, nor can his sureties, in an action on the bond given for the faithful performance of his official duties, set off a claim due him as a corporator by the company. Contract by one corporation to pay debts of anothet^Wbether guaranty or suretyship.— Drake v. Phila. & Beading E. Co., 1888, C. p., 21 W. N. C, 122, 45 L. Int., 3.5. A contract in the following words : " The Phila. & Reading Bailroad Company hereby guarantees the punctual pay- ment of the principal and interest of the within obligation when and as the same shall respectively fall due," field to be a contract of suretyship, not of guaranty, (the said company having taken a lease and an absolute transfer of all the property of the principal debtor and thereby having in its posses- sion the means of paying the obligation). What is a sufficient statement on such a contract under the new Procedure Act. Where the validity of such a contract may depend on the power of the surety to lease the property and franchises of the principal debtor corpora- tion, the plaintiff need not aver it, especially where the authority is con- tained in general statutes, but if there be any lack of authority, it is properly to be set up as a defence. Camden & Atlantic E. Co. ?>. Pennypacker, 1885, 21 W. N. C, 118. An indorsement upon the bonds of a corporation in the following form : " Pay- ment of the principal and interest of the within bond is guaranteed by the Camden & Atlantic Railroad Company," and signed by the proper officer of the latter company, held to be a contract of guaranty and not of suretyship. Bee Attachment, Execution, Judgment, Mortgage. PRIVATE CORPORATIONS. See Kinds of Corporations. Fart /.] PEIVITY — PBOPEETY OF COEPOBATIONS. 309 PRIVITY, Of contract,, see Contracts; between corporation and subscriber for stock, see Sub- scription. PROCESS. See Service. PROFESSOR. College, see Quo Warranto. PROFITS. See Principal and Income, Dividends, Taxation. Liability to account for, see Fraud, Trust. PROMISSORY XOTES. See Bills and Notes. PROIMOXERS. See Subscription. Contracts on behalf of proposed corporaMons, see Contracts, II; corporation's lia- bility for promoter's services, see Id. Making profit by sale of propertyto corporation, see Fraud. PROPERTY OP CORPORATIONS. Abandonment, alienation, forfeiture, lease, mortgage, taxation of, see those heads. Taking of, under right of eminent domain, see Eminent Domain. Distribution of, on dissolution, see Dissolution. Destruction of, by mobs, see Biots. Execution against, see Execution, Attachment. Receiver for, see Receiver. As divided into shares, see Stock and- Stockholders. Power of corporations to acquire and dispose of property, see Powers of Corpora- tions. Constitutionality of legislation affecting, see Constitutional Law. Duty of corporation to keep in repair ^ see Liabilities and Duties of Corporations. 310 PROXIES — PUNITIVE DAMAGES. [Part I. PROXIES. See Elections. PITBI^IC CORPORATIONS. See Kinds of Corporations. PUBLIC DUTIES OF CORPORATIONS. jSee Liabilities and Duties of Corporations. PUBLIC "WORKS. Of Commonwealth, purchasers of, see Powers of Corporations, Liabilities and Du- ties of Corporations, Eminent Domain. Of corporations : taxation of, see Taxation ; execution against, see Execution. PUBLIC ATIOPf . Of notice of intended application for charter. — St. Paul School Asso- ciation, 1879, C. P., Schuylkill, 1 Schuylk. Leg. Rec, 133. Where an ap- plication for a charter is made in open court and duly published in two news- papers and actual notice given to an exceptant, the application will not be refused upon the ground that the published notices contained no statement of the time and place of the intended application. Mutual Beneficial Assn., 1875, C. P., 10 Phila., 380, 32 L. Int., 82. The advertised notice of an intended application for a charter should specify par- ticularly the time and place of such intended application. Application for Charter, 1876, C. P., 11 Phila., 200, 33 L. Int., 158. Appli- catious for Charters in Philadelphia County must be advertised in two news- papers of general circulation and the Legal Intelligencer. For purposes of the publication of notice of intended applications for chart- ers, the Legal Intelligencer is not a newspaper of general circulation. Service on corporations by,— Act of April 11, 1862.— Boyer v. Star Iron Co., 1876, C. P., Schuylkill, 1 Schuylk. Leg. Rec, 89. Under the Act of April 11, 1862, relating to service by publication upon corporations whose principal office is outside of the State and whose officers are non-residents, publication cannot be made so that the first publication is merely at some time within the sixth week before the return day ; the first publication must be forty-two days before the return day. PUNITIVE DAMAGES. See Eminent Domain, IV, 4, a. ■Port Z] PUKCHASE— QUO WAEKANTO. 311 PURCHASB. See Sale. Purchasers of State Works, see Powers of Corporations, Liabilities and Duties, Eminent Domain. QUAlVXritt MERUIX. Compensation of corporate officers, see Action and Suit, II, 6. QITARE CLAVSIJIII FREGIX. QUESTlOPfS OF LAW AND FACT. See Trial. QroRum. See Elections, Internal Goiemment. QVO W^ARRANTO. Jurisdiction of Common Pleas of Dauphin County.— Comm. v. Penn- sylvania, Slatington &c. Railroad Co., 1883, C. P., Dauphin, 40 L. Int., 435, 16 Phila., 596. The Court of Common Pleas of Dauphin County has juris- diction of a quo warranto against a corporation, averring that it was exercis- ing its franchises without authority of law, although it did not exercise its franchises or transact any business in Dauphin County. Unlawful amotion. — Comm. v. Philips. 1880, C. P., Union, 11 Lane. B., 195, 1 Del. Co., 41. Quo warranto is the proper remedy for unlawful amotion from a corporate office ; mandamus does not lie. But see next para- graph. Same— Remedy does not lie against mere agent of corporation- College professor.— Philips?;. Comm., 1881, 2 Out, 394. TheActof June 14, 1836, by which jurisdiction in quo warranto is conferred upon the courts of common pleas, confers no jurisdiction except in questions concerning the exercise of strictly corporate offices. No authority is given to issue the writ against a mere servant, employ^ or agent of a corporation, e. g. a professor in an incorporated university : reversing 1 Del. Co., 13. To test legality of election. — United Fire Association v. Benseman, 1877, 4 W. N. C, 1, 25 Pitts. L. J., 9. The proper mode of testing the legal- ity of the election of a board of directors is by quo warranto and not man- 312 QUO WARKANTO. [Part I. Same— Foreign corporation.— Comm. v. Leisenring, 1881, 15 Phila 215 39 L Int 402. A quo warranto will not be issued for the purpose of inonirine into' the regularity of an election of officers of a corporation chartered by another State, notwithstanding that the charter provides that a branch office shall be kept within the jurisdiction of the court from which the writ is sought, and most of the directors reside within that jurisdiction. Same— Irregularity in preceding election.— Ctomm. v. Smith, 1863, 9 Wr. 59. The legality of a corporate election cannot be attacked for any vice or irregularity in the preceding election when the quo warranto proceed- ings to test the title of those elected at such preceding election were not commenced during the defendants' term of office. Same— Vote after assignment of stock.- Comm. v. Woodward, i860, C. p., 4 Phila., 124, 17 L. Int., 141. A writ of quo warranto will be issued to test the legality of the election of corporation officers upon an allegation that a stockholder who previously to the election had made an assignment of his shares had voted them at snch election, although he did so in the presence and with the assent of the assignee, and the stock had never been transferred upon the books of the company. The question of his right so to vote should have been investigated and decided by the judges conducting the election. Same— Allegation that corporation does not exist.— Comm. v. Wood- ward, I860, C. P., 4 Phila., 124, 17 L. Int., 141. A writ of quo warranto to test the validity of an election of corporation officers will not be quashed upon the alleged ground that the corporation does not exist when the re- spondents themselves claim to have been elected directors and officers. Same — ^Who may be relator. — Comm. v. Murray, 1824, 11 S. & K., 72. An information in the nature of a writ of quo warranto will not be granted to show by -what authority the defendant exercises a corporate office where the party moving for the information does not claim under the charter of in- corporation. Miller v. McCutcheon, 1851, C. P., 2 Parsons, 205. A corporator who does not know, and has no means of knowing, at the time when a corporate election takes place, that one who is elected is incompetent to exercise the office under the charter, will not be deemed to have concurred in it so as to preclude him from being a relator in a quo warranto . information. A party becoming a corporator subsequently to an election is not disqualified from inquiring into the right by which officers, illegally chosen at such election, hold their office. Same— What relator must show. — Comm. v. Filer, 1883, C. P., Mer- cer, 30 Pitts. L. J., 286. Where a private relator institutes quo warranto proceedings to test the respondent's right to hold a corporate office which the relator claims to be himself entitled to, he must show both his own title and that the respondent has usurped the exercise of the duties and enjoyment of the privileges of the office. Same— Evidence on trial'— Conversations.— Comm. v. Woelper, 1817, 3 S. & R., 28. On the trial of a quo warranto which puts in issue the legal- ity of an election conversations and confederacies between the members pre- vious to the election are admissible in evidence when connected with the election. Same— Proof of presence of quorum.— Comm. v. Read, 1839, 2 Ash., 261. Where at a corporate election some of the electors have refused to vote at all, the fact that a number of electors equal to a quorum actually voted is not the only admissible evidence, in a proceeding to test the validity of the election, to prove that a quorum were present at the meeting. Although the number of votes cast was less than a quorum, the fact that a quorum were present may be proved by the usual modes of evidence. To forfeit corporate franchises.— aeveland & Pittsbgh. Railway Co. V. Speer, 1867, 6 Sm., 325. The exercise of a corporate franchise conferred Part J.] QUO WABKANTO — RECEIVfeRS. 313 under a general authority can be corrected or interrupted on the ground that it is an abuse of the discretion possessed under such authority, only by the Commonwealth. Same— When private citizen cannot be relator. — Comm. v. Allegheny Bridge Co., 1852, 8 H., 185. An alleged injury inflicted by a corporation upon a private individual does not constitute such a personal interest in the forfeiture of the charter as will entitle the injured party to maintain pro- ceedings by quo warranto, where such party has his remedy against the corp- oration by action. Comm. V. Farmers' Bank, 1853, 2 Gr., 392, 11 Leg. Int., 190. A private citizen cannot sue out a writ of quo warranto to enforce the forfeiture of a charter upon the ground that the fact of his being a creditor ol the corpora- tion and having an action pending against it for the recovery of his debt gives him a special interest in the forfeiture. Comm. V. Allegheny Bridge Co., 1852, 8 H., 185. Corporate franchises cannot be forfeited to the Commonwealth on quo warranto at the instance of a private relator who does not seek thereby to redress a private grievance. See also Murphy?). Farmers' Ban1|, 1853, 8 H., 415; Comm. v. Phila. &Nor- ristown Railway Co., 1853, 8 H., 518; Comm. v. Philadelphia & Chester County R. Co., 1881, 10 W. N. C, 400. Lejee u. Continental Passenger Railway Co., 1875, C. P., 2 W. N. C, 170. A bill praying for an injunction to restrain a corporation from doing a par- ticular act, on the ground that the franchise by virtue of which the act is proposed to be done has been forfeited, cannot be maintained. The proper remedy is qua warranto. RAXIKICAXION. Of contract of subscription, see Subscription. Of acts of agents, directors or officers, see Agency, Directors, Officers ; of direct- ors' acceptance of charter, amendment thereto or provisions of statutes, see Ac- ceptance and Assent, Constitutional Law. Of contracts on behalf of proposed corporations, see Contracts, II. Of corporations' increase of indebtedness, see Debts. Of mortgage by corporation, executed at special meeting, see Mortgage. REAL ESTATE COMPANY. Preferred stock of, see Preferred Stock. REAL PROPERTY. See Land. RECEIYERS. When receiver will be appointed— Insolvency.— Gormerly v. Build- ing Association, 1876, C. P., 3 W. N. C, 11. The insolvency of a corpora- 314 EKCEIVEES. [Part I. tion does not dissolve it, and where its organization is nominally maintained, equity will not interfere to appoint a receiver and enjoin the acting officers. See also Germantown Ewy. Co. v. Fitler, 1869, 10 Sm., 124 and Seitzinger r. Oil Co., infra. Ranschmeyer n. Scranton Bank, 1S15, C. P., Lackawanna, 1 Lack. Leg. Eec, 365. A stockholder's application for a receiver for an alleged insolv- ent bank and for an injunction against the officers and directors will not be granted where the material allegations of the bill are denied by the defend- ants' affidavits and where it does not appear that the present condition and management of the corporation is such as to certainly imperil the assets. Acts which might warrant an injunction against their continuance are not necessarily sufficient to warrant the appointment of a receiver. Bloom V. The Banking Co., 1877, C. P., 4 W. N. C, 138. An injunction will be granted to restrain the election of trustees from among the stock- holders and directors of an insolvent corporation to wind up its affairs, and the court will appoint a receiver. Soitzinger v. December Oil Co., 1873, C. P. , Schuylkill, 1 Leg. Chron., 234. A corporation cannot be dissolved and placed in the hands of a receiver for ' the winding up of its affairs, under an act of Assembly, without a previous legal ascertainment of its insolvency. The process of winding up cannot he commenced upon the mere filing of a bill in equity under the provisions of the act. Same — Discretion of court. — McGeorge v. Hancock Steel & Iron Co., 1875, C. P., Montour, 11 Phila., 602, 32 L. Int., 372. The appointment of a receiver of the property of a corporation is a matter within the sound dis- cretion of the court, and will be made whenever it is required for the pro- tection of its creditors by mortgage. Same — Corporation must beparty to bUl. — Gravenstine's Appeal, 1865, 13 Wr. , 310. A receiver cannot be appointed for a corporation upon a bill to which it is not a party. Same— Repeal of charter— Custodian apppointed by Legislature.— Erie & Northeast Railroad Co. v. Casey, 1856, 2 C, 287. When a corpora- tion is dissolved by a repeal of its charter, the Legislature may appoint a person to take charge of its assets for the use of the creditors' and stockhold- ers, and to take charge of such of its property as belonged to the public for the use of the public. Same— When pendency of bill on mortgage in Federal court does not preclude appointment.— McGeorge v. Hancock Steel & Iron Co., 1875, C. P., Montour, 11 Phila., 602, 32 L. Int., 372. The pendency of a bill in equity in the U. S. District Court, to ascertain whether a certain satisfied mortgage of a corporation's property is or should be still a lien upon it, and, if so, to ascertain who are entitled to the bonds secured thereby,- does not prevent a state court from entertaining a bill against the defendant in the former court, a mortgagor, to restrain waste of the property and for the ap- pointment of a receiver. Receiver as party to action or suit— Bill against directors to re- cover misappropriated funds.- McCarty's Appeal, 1885, 17 W. N. C, 182, 43 L. Int., 186, 33 Pitts. L. J., 454. The receiver of a dissolved corpora- tion may maintain a bill in equity against its officers and directors to re- cover moneys of the corporation which they have wrongfully appropriated to themselves. Same— Collection on bond for subscription.— German Ins. Co. v. Strahl, 1878, C. P., Erie, 13 Phila., 512, 35 L. Int., 333, 25 Pitts. L. J., 131. One who gives his bond to a corporation for money due for his subscriptions to its stock is liable upon the bond to the creditors of the corporation upon the insolvency of the latter, notwithstonding a private agreement with the officers of the corporation that the giving of the bond should be treated "as a mere matter of form." Such a contract, though good as between the sub- scriber and the corporation, is void as to the corporation's creditors Part I.^ RECKIVEES. 313 The collection of such a bond by the corporation's receiver will not be stayed merely because it has not been ascertained that it will be necessary in order to pay the debts of the corporation. Same— Foreign corporation.— Stewart v. United States Ins. Co., 1839, 9 Wts., 126. A foreign corporation may maintain an action in Pennsylvania either in its own name or in the name oi its receivers. Same — ^Where transaction was with receiver.— Philadelphia & Bead- ing Coal & Iron Co. 0. Schaada, 1881, C. P., 18 W. N. C, 20, 15 Phila., 285, 38 L. Int., 392. "Where a transaction which furnished the cause of an action was with the receivers of a corporation, the action must be brought in the name of the receiver, by leave of the court, and not in the name of the corp- oration. An affidavit of defence alleging such a want of proper parties plain- tiff is sufficient. Admitting receiver to file affidavit of defence.— Hays v. Pittsburgh & Castle Shannon K. Co., 1880, C. P., Allegheny, 27 Pitts. L. J., 105. Where, upon due permission, suit has been brought against a corporation in the hands of a receiver, with notice to the latter, and an appearance entered by the latter, without an affidavit of defence, judgment may be taken against the corporation for want of an affidavit of defence. Such a judgment will not be set aside upon a rule by the receiver. But it will be opened, and the receiver given permission to make himself a party defendant and file an affi- davit of defence. Service on receiver. — ^Wert v. Keim, 1886, C. P., Northampton, 3 C. C. E., 405. Where leave has been given by the proper court to sue the receiv- ers of a corporation, service may be made upon them as upon the principal officers of a corporation. Judgment against— How to be entered. — Comm. v. Eunk, 1856, 2 c, 235. A judgment against the receiver of a corporation should be so entered as to be payable only out of the corporate funds which are, or ought to be, in his bauds. Effect of appointment — Attachment.^Hin^ermeister r. Organ Co., 1885, C. P., Luzerne, 3 C. P. Eepr., 65, 74, 76, 1 C. C. E., 466. An attach- ment cannot be issued against a corporation or its receiver after dissolution. Same — Dissolution of attachment— Lien— Execution etc.— Pickers- gill V. Lycoming Ins. Co., 1882, 39 L. Int., 312. The dissolution of a corp- oration and the appointment of a receiver for it does not dissolve an attach- ment previously served upon it as garnishee. The suit may be prosecuted to judgment upon the substitution of the receiver as a party. Merchants' Bank«;. Petersburg Eailroad Co., 1887, C. P., 4 W. N. C, 264. The appointment of a receiver tor a corporation has no effect upon the valid- ity of the lien of an attachment upon the corporate property served prior to such appointment. Frailey v. Ins. Co., 1874, 9 Phila., 219, 31 L. Int., 356. Where an attach- ment is issued against a corporation and judgment obtained on it, but prior to such judment the corporation has been dissolved and a receiver appointed, the judgment and execution thereon will be set aside and the property given, to the receiver. Same — Dissolved corporation — State, comity. — Hintermeister v. Or- gan Co., 1885, C. P., Luzerne, 33 Pitts. L. J., 365, 3 C. P. Eepr., 65, 74, 76, 1 C. C. E., 466. A foreign attachment against' a corporation chartered, dis- solved and placed in the hands of areceiver by another State cannot be main- tained by one who was, at the time of such dissolution and appointment, not only a citizen of such other State but a director of the company, and therefore bound by such proceedings. The allowance of such an attachment is forbidden by the principle of inter-State comity. Same— Proceeds of execution— Distribution.— Titusville Bank «. Man- ufacturing Co., 1883, C. p., Erie, 13 W. N. C, 174. The rule that the pro- ceeds of an execution sale of the general property of a corporation, where 316 KECEIVEES — EEDDCTION OF CAPITAL. \_Part I. the fact of its insolvency has not been previously established by a retnrn of Nulla bona, are to be distributed according to the priority of execution lien, is not affected by the fact that a receiver was appointed after the property was taken in execution. Service— Foreign corporation— Receiver appointed by Federal court. —Anderson v. Buffalo, New York & Phila. E. Co., 1886, C. P., McKean, 2 C. C. R., 402. A service in the usual manner upon the agent of a foreign corporation in the hands of a receiver appointed by a Federal court will be set aside. Taxation under Act of June 7, 1879. — Philadelphia & Reading Rail- road Co. V. Comm. , 1883, 8 Out. , 80. The fact that a corporation is in the hands of receivers appointed by a Federal court does not release the corporation from its liability to pay the tax on gross receipts provided for by the Act of June 7, 1879, nor render improper the statement of an account for such tax against the corporation, rather than the receiver. Exercise of right of eminent domain.— Lewis v. Germantown, Norria- town & Phoenixville R. Co., 1881, 0. P., Montgomery, 16 Phila., 608, 39 L. Int., 13. The lessees of the rights and property of a corporation cannot of their own motion exercise the right of eminent domain of the lessor corpora- tion vested in the latter but unexercised by it at the time of the demise ; nor can receivers of the lessee corporation. When a statute prescribes what powers shall pass by such a lease, no others can be otherwise conferred. RECOGXIZANCE. &e Appeal, II, Attachment, Eminent Domain. RECORD APID RECORDING. Corporate records, see Books and Records of Corporations. Of suit for frandvleal and inalicimisrejeetion of corporator's vote, see Elections. Unrecorded charter as evidence, see Evidence; that failure to record does not reader toid, see Charter, IV, 2. Filing corporation's name in Auditor General's Office, under Act of May 1, 1868, see Creation of Corporations, IV. Failure to file agreement of consolidation in Office of Secretary of Commonwealth, see Consolidation of Corp/n-ations. Of certificate of incorporation, as constructive notice of conveyance to corporation, see Notice. REDEmPXION. Of preferred stock, see Preferred Stock. REDVCXIOPf OF CAPITAL. As affecting taxation, see Taxaiion. Part /.] EEFEEENCE— EEMISSION. 317 REFERENCE. See Arbitration. REGISTRY. See Record and Recording. REGULATIONS AND RULES. Of eorporations, see By-laws. Liability of corporations to municipal regulation, see Liabilities and Duties of Corporationa. REINSTATEMENT. Of disfranchised member, see Disfranchisement, Amotion. RELEASE. Of subscription, see Subscription. By director, of debt due corporation, see Directors. Of damages for corporation's entry on land, see Eminent Domain. REmAINDERIHAN. See Principal and Income. Trustee of, as party to proceedings to assess land damages, see Eminent Domain. REMEDIES. See Action and Suit, Injunction, Receiver, Mandamus, Quo Warranto. By-law provisions for r emedies for aggrieved member, see By-laws, Disfranchise- ment, REMISSION. Power of directors to remit debts, see Directors. 318 REMITTITUE — EEOEGANIZATION. [_Part I. REMIXTIXtJK. Of excess of land damages awarded, see Emineid Domain. REinOVAI^ OF CAUSES. Ebv V Northern Pacific Railroad Co., 1879, C. P., 13 Phila., 161, 36 L. Int., 164. A corporation chartered by Congress is neither an alien nor a '■citizen of another State " within the meaning of Section 639 of the U. S. Revised Statutes ; hence a suit to which it is a party may be removed from a State to a Federal court at any tjme before.tnal or final heanng. Wheeden v. Camden & Amboy R. Co., 1856, 1 Gr., 420, 2 Phila., 23. For purposes of suing and being sued a corporation is to be regarded as a citizen of the State by which it was chartered. The fact that some of the stockhold- ers of a corporation defendant reside in the same State with the plaintiff, cannot prevent the removal of the cause from the courts of that State to the Federal courts. Vankirk v. Pennsylvania Railroad Co., 1874, 26 Sm., 66. In an applica- tion for the removal of a cause in which a corporation is a party the affidavit of the latter may be made by an agent or employ^. See also Jueisdiction. RENE^VAL OF I^EASE. See Eminent Domain, IV, 1. RENX. See Lease. Power of directors to remit, see Directors. REORCANIZAXION. Pennsylvania Transportation Co.'s Appeal. 1882, 5 Out., 576. Where the property of a corporation is about to be sold at a judicial sale, on a mort- gage, the bondholders, stockholders and a large majority of the general creditors may unite in the purchase of such property and form a new corpor- ation, the agreement to so purchase specifying the rights and securities in the new corporation which the three classes of parties should respectively have. There is nothing fraudulent or illegal in such a contract where its object is merely the protection of the several interests of the parties ; and the new corporation takes title to the property clear of incumbrances and equities ex- isting against the old corporation : affirming 11 W. N. C, 35, 29 Pitts. L. J., 98. See also Lusk's Appeal. 1884, 12 Out., 152. Balliet v. Brown, 1883, 7 Out., 546. A general creditor of a corporation cannot object to such a sale or transfer of its property by its directors as will prevent the continuance of its business and trtinsfer the control of such prop- erty and business to a new corporation which is a reorganization of the old one. A trustee of the property of the original corporation who transfers the Pctrt i.J REOEOANIZATIOS — EESIDEXCE. 319 property in good faith, with the approval of the board of directors and the assent of the stockholders, to such a newly-formed corporation in which the original is merged, is not liable as a garnishee of the latter when the attach- ment is issued after such transfer. Buckley v. Union Canal Co., 1858, 3 Phila., 152, 15 L. Int., 212. Where a minority of the bondholders ot a quasi-public corporation have stood by and seen the majority bind themselves to a^cheme of finance which promised best for all parties, they cannot have an injunction to restrain the carrying out of the proposed arrangement ; their sole remedy is the legal one upon the mortgage. Walker c. Whelan, 1861, 4 Phila.. 389, 18 L. Int., 236. Where an agree- ment is made among certain bondholders of an insolvent corporation to pur- chase the property at a judicial sale " for the benefit of all" the bondhold- ers of that class, and to then transfer -it to a new company, all of the bond- holders of that class are entitled to a proportionate share of the bonds of the new company to which it is transferred. REPAIR^ Duty of corporation to keep ils work/i in, see Liabilities and Duties, Soadt and High- ways. Loan, by sequestrator for repair of corporate works, see Loan. REPEAL. Of charter, see Charter, V. See also Statutes. REPORT. Of viewers to assess land damages, see Eminent Domain. RESCISSIOX OF CONTRACTS. See Contracts, IV, Subscription. RESERVATIONS. In charter, see Constitutional Law. RESIDENCE. See Service, Citizenship. 320 RESIGNATION — KiOTS. [Port /. RBSIGKAXIOBI. Refwial to resign from social club, see Disfranchisement. RES0L,irXI09(S. See Directors. As evidence, see Evidence. RESXORAXIOPI XO MEMBERSHIP. See Disfranchisement. RETIJRK. Of writs, see Service. To taxing officers of State, see Taxation. REVERSIOBi. Of lands tpJcen under right of eminent domain or granted to State for Public Works, see Eminent Domain, Abandonment. REVIE'W. See Appeal. Of assessment of land damaqes, see Eminent Domain. RIGHX OF "(VAY. See Eminent Domain. See Powers. RIGHXS. RIOTS. Destruction of corporation's property by, - St. Michael's Church i . Philadelphia, 1847, 4 Clark, 150, Brightley, 121, 7 P. L. J., 181. The words " person or persons " in the Actof May 31, 1841, relating to the destruction of property by riots, include corporations as well as natural persons.' See also Hermits of St. Augustine v. Philadelphia, 4 Clark, 120, 7 P. L. J., 124, Brightiey, 116. ff^t /.] EOADS AND HIGHWAYS — SALARY. 321 ROADS AXD HIGH^VAYS. Corporations^ power to appropriate or ust, under right of eminent domain, see Em- inent Domain. Duty of corporation to reconstruct and repair,— Nuisance— Indict- ment. — Pittsburgh, Virginia & Charleston Railway Co. v. Comm., 1882, 5 Out., 192. A corporation may be indicted for a breach of duty imposed on it by law, e. g., for a failure to reconstruct a highway, thereby creating a nuisance. See also Delaware Division Canal Co. v. Comm., 1869, 10 Sm.. 367: Northern Central K. Co. v. Comm., 1879, 9 Nor., 300. Boon V. Plank Eoad Co., 1882, 12-W. N. C, 283. Acorporation which is bound to keep a highway in repair is liable for injuries caused by an obstruc- tion which it negligently permitted to remain in such highway, whether such corporation be public or private. Lack of proper supervision in such case is the sajne in effect as actual notice to the company. Comm. V. Myers, 1885, C. P., Lancaster, 2 Lane. Law Eev., 129. A turn- pike company which is required by law to keep a bridge in repair is not thereby required to rebuild it when it is destroyed by fire. Laying out road over corporation's right of way— Abandonment.— Eoad from Great Bend, 1886, Q. S., Susquehanna, 2 C. C. E., 335. A public road cannot be laid out upon land over which a corporation has a right of way upon the ground of the company's mere non-user ; abandonment must be clearly shown. Benefits to corporation's land from opening street.— Berks Street, 1882, 12 W. N. C., 10. Land of a corporation upon which are erected the stations, shops etc. necessary to the enjoyment of its franchises is liable to assessment for the benefits thereto arising from the opening of streets. Corporation entitled to notice of road view. — Eoad in Lancaster City, 1871, 18 Sm., 396. The notice to be given of a road view applies to corpor- ations interested as well as to natural persons. See also 3 Lane. B., No. 25. Central Eailroad Co.'s Appeal, 1882, 6 Out., 38. Where in proceedings to lay out a road a corporation is one. of the land ovraers, the notice to such corporation must be given according to the statutory mode, and in all re- turns of such service its manner must appear, so that the courts may judge ot its sufficiency. RITLES AND RBGVI^AXIOXS. See By-laws. SALARY. Cknnpensation of directors, see Directors, 11, 3. Statute prohibiting payment of salaries to corporate officers, see Constitutional Law, I, 2. Beseiuiion of directors limiting pay of employe, see Contracts, VI. 21— MUBPHY. 382 SALE — SEAL. [Part I. SALB. Of corporate bonds, see Bonds. Of wntaken slock, at atiction, see Auction ; disposition of stock in general, see Stock and Stockholders, II, Subscription, II. Of corporate franchises and properly, see Franchises. Upon execution or mortgage, see Execution, Mortgage. Fraud in sale of goods by corporation's agent, see Agency, II. Liability of purchasers of corporate property and franchises at judicial sale, see Liabilities and Duties of Corporations. That corporation's lien on stock does not give right to sell, see Lien. Sales of land in neighborhood of land taken under right of eminent domain, as evidence, see Eminent Domain, IV, 4. SCIRE FACIESo Upon mortgage, see Mortgage. Upon judgment for land damages. — Fries v. Southern Penna. Railroad <& Mining Co., 1877, 4 Nor., 73. Where a railroad company gives a bond to secure land damages and takes possession, and its property is subsequently sold in foreclosure, the land owner cannot proceed by scire facias against a purchaser at the foreclosure sale on a judgment for damages entered after the recording of the mortgage. He must proceed upon the bond. Potter V. Pittsburgh Southern R. Co., 1886, 43 L. Int., 298, 33 Pitts. L. J., 289, 17 W. N. C, 40. On a sci.fa. q. e. n. upon a judgment against a corpor- ation for damages in taking the plaintift's land, an affidavit of defence alleg- ing that the defendants are the successors, by purchase at a judicial sale, of the company against which the judgment was obtained, and that they had abandoned the proposed right of way and never taken or in any manner interfered with the plaintift's land, is sufficient. SCRIP. See Contracts, V. SEAL. Necessity of seal to validity of corporate acts.— Chestnut Hill Co. ». Rutter, 1818, 4 S. & R., 6. The appending of the corporate seal is not nec- essary to make an act that of the corporation and impose liability therefor • overruling Breckbill v. Turnpike Co., 3 Dall., 396. See also Magill v. Kauftinan, 1818, 4 S. & R., 6; Rathbone v. Tioga Navigation Co. 2 W & S., 74; Hamilton v. Lycoming Insurance Co., 5 B., 339; Bank of Kentucky V. Schuylkill Bank, 1 Parsons, 180. n.cui.ui,Ky Part /.] SEAL. 323 Mechanics' Bank v. West Philadelphia Railway Co., 1878, C. P., 5 W. N. C, 290. The note of a corporation is valid without the corporate seal. Wolf V. Goddard, 1840, 9 Wts., 544. The authority of the agent of a corporation to give notice to its tenant to quit possession need not be under seal. New York &c. Telegraph Co. v. Dryburg, 1860, 11 C.,298. A corporation may be sued in tort, in its corporate character, for damages arising from the neglect of its employes appointed without a seal. See also Penna. E. Co. v. Vaijdiver, 1862, 2 Wr., 365. Hazlett V. Ins. Co., 1874, C. P., 1 W. N. C, 24. Where the charter of an insurance company provides that all contracts of insurance made by it shall be in writing or print, under the corporate seal, and signed by the presi- dent, a verbal contract of insurance by an officer of the company is ultra vires. See also Graham v. R. Co.. 1874, C. P., 1 W. N. C, 40; Hanson v. R. Co., Id., 7. Marietta Building Assn., 1878, C. P., Lancaster, 10 Lane. B., 37. A pe- tition for the dissolution of a corporation under the Act of April 9, 1856, must be under the corporate seal. Authentication and identification of corporate seal— Authority to affix, — Leazure v. Hillegas, 1821, 7 S. & E., 313. To make the deed of a corporation evidence it must be proved that the seal appended is the seal of the corporation. Turnpike Co. v. McCuUoch, 1856, 13 L. Int., 93. The seal of an instru- ment upon which suit is brought against a corporation must be proved to be the seal of the corporation. Grossman v. Hilltown Turnpike Co., 1857, 3 Gr., 225. In an action of covenant against a corporation the seal upon the instrument on which suit is brought must be proved to be the seal of the corporation. A corporation may adopt the seal of another, or an ink impression, but such adoption must be proved. To this it is not necessary to show a resolution of the directors. Whether or not the seal is that of the defendant corporation is a question for the jury. St. Mary's Church, 1822, 7 S. & E., 516. A proposal for the alteration of a charter is not necessarily to be considered the act of the corporation be- cause it is under the corporate seal ; the court may inquire by what authority it was affixed. Berks & Dauphin Turnphike Co. v. Myers, 1820, 6 S. & E., 10. The afiSxing to a contract of the corporate seal, which is a purely ministerial act, may be done by a number of managers less than the minimum who, under the charter, may enter into the contract ; the seal itself is prima facie evid- ence that the contract has been duly entered into by the corporation, unless the authority to affix it is confined by the charter to a particular officer or member, and where there is no such restriction, the question of its authori- zation is for the jury. Gordon v. Preston, 1833, 1 Wts., 385. Where the seal of a corporation is not confined to the custody of any particular officer it may be affixed to a mortgage by the corporation by the corporators present as such, and an ac- knowledgment by such corporators is a sufficient acknowledgment. Quicksall v. Eailroad, 1862, D. C, 4 Leg. & Ins. Rep., 107. In an action against a corporation on an instrument made under the corporate seal, at- tested by the president and secretary, it is not necessary for the plain tifi" to show that the board of directors authorized its execution. Farmers' Bank v. McKee, 2 B., 318. In order to make an agreement by the president of a corporation under the corporate seal evidence against the. corporation, it must be shown to be within the scope of the president's au- thority. Parkinson v. Parker, 1877, 4 Nor., 313. The seal of a corporation to a bond is prima fade evidence that the corporation duly authorized its execu- tion. See also Berks & Dauphin Turnpike Co. v. Myers, 1820, 6 S. & R., 16. Mandamus to compel affixing of corporate seal.— Comm. v. Trustees 324 SEAL — SECUKITIES. IPart I. of St. Mary's Church, 1821, 6 S. & R., 506. Ama»dam«s will not be grantptl upon the application of a majority of the members of a corporation to conipel the board of trustees in whom the corporate rights are vested to affix the common seal to alterations and amendments to the charter. Form of sealed instrument. — Hoskinsu Mehaffy, 1824, 11 S. & R., 126. Where in the body of a sealed instrument the covenants are stated as though made directly by a corporation Vfith the plaintiff, but it is signed and sealed with the seal of the president, who is duly authorized to enter into the contract as the corporation's agent, the latter is not personally liable upon it. Note under seal— Inctuiry into consideration.— Hopkins t. Railroad Co., 1842, 3 W. & S., 410. The note of a corporation, though, in its form of words strictly negotiable, is a specialty if attested by the corporate seal ; and in an action upon it by an indorsee its consideration is open to inquiiy. Action of covenant against corporation. — Farmers' &c. Turnpike Co. V. McCullough, 1855, I C, 303. An action of covenant will lie against a corporation on a written agreement sealed with its common seal. Contract under seal by agent of association afterward incorporated — Assumpsit. — Swisshelm v. Swissvale Laundry Co., 1880, 37 L. Int., 514. A contract under seal to sell land was made between the owner and a mem- ber and agent of an association intending at the time to become a corpora, tion and shortly afterward actually receiving its charter. The agent exe- cuted the contract as for himself alone although the intention of all. parties was that the purchase should be by and for the association. The corpora- tion accepted the contract in parol and entered into possession of the land. Held that the corporation was liable in assumpsii for the stipulated price. Mortgage— Corporation's lack of power.— St. John's Church v. Stein- metz, 1852, 6 H., 273. A mortgage under a corporate .seal cannot be ren- dered inadmis.sible in evidence on the grouud that, the title of the corpora- tion in the land in question being inalienable, it had no power to mortgage, and that therefore the mortgage is not its deed. SECREXARV. See Offlcera. SECURITY. Far damages in taking land under rigM of eminent domain, see Eminent Domain. On official bonds, see Office and Officer. On appeal, nee Appeal. SECURITIES. Possession of, by chief officer, as notice of corporation's ownership, see Notice. Part 7.] SEQUESTEATIOX — SEE VICE OF PEOCESS. 325 SEeUESTRAXION. See Execution. Sequestrator as party to suit, see Action and Suit, III, 6. Appeal by acquestrator, see Appeal. Loan hy sequestrator to corporation, see Loan. Action for earnings during sequestration, see Set-off. SERVAI«TS OF CORPORATXOXS. See Agency. Corporation's liability for negligence, see Negligence, SERVICE OF PROCESS. On foreign corporations, see Foreign Corporations. On extinct corporation— Practice.— Shamokin Valley & PottsvUle Railroad Ck). v. Malone, 1877, 4 Nor., 25. An extinct corporation cannot be served with process ; nor can judgment be taken against it by default. Eeifler v. Honesdale & Delaware Plank Road Co., 1885, C. P., "Wayne, 1 C. 0. K., 64. A corporation's existence is extinguished by a sheriffs sale' of its rights and franchises under the Act of April 7, 1870, and no action can be maintained agaimst it thereafter. "Whether, where a writ is served on the former treasurer of such an extinct corporation, the proper form of procedure is for the party served to take a rule on the plaintiff to show cause why the writ should not be abated dubitatur. Defective service — Cure by appearance. — Swartwood v. Exeter, 1881, C. P., "Wyoming, 1 Kulp, 304, 10 Luz. Leg. Eeg., 49. An appearance, to cure a defective service upon a corporation, must be by some one authorized to represent the corporation. Misnomer of defendant.— Kroberger v. Citizens' Bank, 1875, C. P. , 2 "W. N. C, 80. A corporation which has held itself out as of a certain name and contracted under such name cannot take advantage in an afiSdavit of de- fence of the fact that such name appears as the name of the defendant in the writ served upon it, although its proper name is, although similar to that used in the writ, different. By publication— Act of April 11, 1862.— Boyer v. Star Iron Co., 1876, C. P., Schuylkill, 1 Schuylk. Leg. Eec, 89. Under the Act of April 11, 1862, relating to service by publication upon corporations whose principal ofiSce is outside of the State and whose officers are non-residents, publication cannot be made so that the first publication is merely at some time within the sixth week before the return day ; the first publication must be forty- two days before the return day. Proof of service— Competency.— Crozer v. Leland, 1838, 4 "Whart., 12. In an action brought by a corporation a member thereof is not a competent witness to prove service of notice where that is a part of the issue. Upon whom service may be made— Agents and officers.— Ohio & Pennsylvania Railroad Co. v. Brittian, 1856, C. P., Lawrence, 1 Crum., 271. A return of a justice's summons which does not show that service was made upon any officer or agent of the delendant corporation is not sufficient, though it states that a copy was left at an office of the company. 326 SERVICE OF PROCESS. [Part/. Parke v. Commonwealth Insurance Co., 1863, SWr., 422. A service upon a mere travelling agent of a corporation is not a valid service upon the corp- oration, under the Act of April 8, 1851. Cochran v. Library Co., 1868, 6 Phila., 492, 25 L. Int., 20. The 6th sec- tion of the Act of April 8, 1851 (P. L., 354), providing for service upon any officer or agent of a corporation defendant, applies only to foreign corpora- tions. In the case of other corporations a service upon an agent other than "the president, or other princiual of&cer, or on the cashier, toeasurer, secre- tary or chief clerk, "will be set aside. See also O'Hara ». Mutual AidSociety, 1882, C. P., Luzerne, 2 Kulp, 269, 12 Luz. Leg. Eeg., 45. French v. Pennsylvania & New York Canal & Railroad Co., 1873, C. P., Wyoming, 1 Leg. Chron. E., 66. A return of service as made upon an " agent " of a corporation is conclusive that the person upon whom the serv- ice was made was such an agent as may lawfully receive service for the corp- oration. Means v. Lycoming Ins. Co., 1879, C. P., Bradford, C. P. Eep., 6. Serv- ice upon a special agent of an insurance company who has no office or place of business is void. The sheriff's return in such case is not conclusive. Powder Co. v. Coal Co., 1879, C. P., 8 W. N. C, 76, 14 Phila., 166, 37 L. Int., 14. A return of service upon A., "the last president " of the corpora- tion against which the writ issued, is not sufficient, and will be set aside. If there has been a failure to elect officers at the regular time, the return, it seems, should be in the usual manner, of service upon the president. Swartwood v. Exeter, 1881, C. P., Wyoming, 1 Kulp, 304., 10 Luz. Leg. Eeg., 49. A return of service upon a corporation, "Served by reading orig- inal summons to defendant," is not sufficient. It must show that service was made upon the officers authorized by law to act for the corporation. Singer v. Singer Manufacturing Co., 1887, C. P., Carbon, 2 C. C. E., 578. The return of service upon the agent of a corporation should state the name of the agent. Same — ^Attachment. — State Insurance Co. v. The Oglesby, 1859, C. P., Dauphin, 1 Pear., 152. An attachment-execution cannot be served upon a mere agent of a corporation, who might be served in a suit against the corp- oration for a debt due by it, unless such agent has the money due the prin- cipal defendant actually in his hands. The service must be made on the president, treasurer or other officer holding the funds. See, as to attachment generally, Attachment. Same— Non-resident stockholders.— Brainard v. Stout, 1879, C. P., Luzerne, 8 Luz. Leg. Beg., 28. Non-resident stockholders not engaged in business in the county cannot be served with process under the Acts of April, 1856 or April 21, 1858. Setting aside service on officer. — Moran v. Connellsville Coal Co., C. P., AUeghehy, 2 Schuylk. Leg. Rec, 278. Service returned as made upon the proper officer of a corporation will not be set aside three months later upon an affidavit that the person served is not an officer of the company. Where and how service must be made.— Moran v. Connellsville Coal Co., C. p., Allegheny, 2 Schuylk. Leg. Eec, 378. Service upon the proper officer of a corporation may be made upon him in any manner in which the service could have been made upon a natural person. Lehigh Coal & Navigation Co. v. Lehigh Boom Co., 1878, C. P., 6 W. N. C, 222, 12 Phila., 540, 35 L. Int., 430. Service upon a private corporation ' by service upon its officers may be validly made anywhere in the State and within the jurisdiction of the court issuing the writ. See also Schell v. Girard Ins. Co., 1879, C. P., Luzerne, 8 Luz. Leg. Eeg.. 142. Hughart v. Bedford & Bridgeport Eailroad Co., 1871, C. P., Dauphin, 2 Pear., 116, 2 Leg. Opin., 63. In a transitory action against a domestic corporation service may be made upon its officers in any county in the State where they may be found. Part /.] SEEVICE OF PROCESS — SEEVTCES. 337 Brobst V. Bank of Pennsylvania, 1843, 5 W. & S., 379. An action cannot be brought against a corporation by service upon a cashier at a subordinate office in a connty other than that in which the corxwration is located. Grub V. Lancaster Manufacturing Co., 1875, C. P., 1 W. N. C, 264. Under the Act of March 17, 1856 (P. L.,388), service may, under the conditions specified, be made upon a director of the corporation defendant in a county in which only personal property of the latter is situated. The service need not be upon a director personally, but may be madenpon him in any of the ways prescribed by law. See also 1 "W. N. C, 389. Grub V. Lancaster Manufacturing Co., 1875, 1 W. N. C, 201. Service of a writ upon a director of a corporation under the Act of March 17, 1856 (P. L., 388), will not be set aside because the return does not show that neither the president, secretary, treasurer nor chief clerk resides in the county . Upon a rule to set aside such service the court will grant the plaintiff time to prove that such officers did not reside in the county. See also 1 W. N. C, 389. Lehigh Valley Insurance Co. v. Fuller, 1876, 33 L. Int., 256, 23 Pitts. L. J., 193. Service upon an agent of a corporation, under the Act of May 4, 1852, must be made at the usual^ place of business or residence of such agent ; personal service on the agent is not sufficient. Attachment under Act of 1869. — Mechanics' Bank v- Miners' Bank, 1883, C. P., Carbon, 13 W. N. C, 515, 41 L. Int., 312. An attachment under the Act of 1869 may validly issue against a corporation except as to its real estate. The writ may be served upon the corporation by a delivery of a copy of the attachment, with an inventory of the property attached, to the president or cashier of the corporation. Foreign attacliment. — Silva v. Greenwald, 1886, C. p., 3 C. C. E., 131. The return of service of a writ of foreign attachment against a Pennsylva- nia corporation must show compliance with the Act ot March 17, 1856. Where service is made as though upon a foreign corporation it will be set aside. Upon foreign corporation. — Coxe v. Camden & Atlantic Railroad Co., 1882, C. P. , 11 W. N. C. , 386, 15 Phila. , 1 89, 39 L. Int. ,189. Service of process may be made upon a foreign corporation by leaving a true and attested copy at the dwelling house of the president, with an adult member of his family, when the president resides within the court's jurisdiction. Same — Foreign attachment. — Dawson v. Cambell, 1837, 2 Miles, 170. A foreign corporation cannot be summoned as garnishee in a foreign attach- ment by a service on its chief officer at the time of the service within the jurisdiction of the court. Sfee also Attachment, Foebign Coepoeations. SERVICE OF ?(OXICE. Of appointment of viewers to assess damages for land taken under right of eminent domain, see Eminent Domain, IV, 4, d. Of road view, see Soads and Highways. See Notice. SERVICES. Compensation of officers, see Office and Officer ; of promoters, see Contracts, II. 328 SET-OFF — SINKING FUND [Part 1. SET-OFF. By stockholder, against claim for unpaid subscriptions.— Macungie Bank v. Bastian, 1881, 10 W. N. C, 71, 38 L. Int., 310. The capital stock of a corporation, whether fully paid or partly outstanding in the hands of subscribers, is a trust fund for the benefit of its creditors. A stockholder in- debted to an insolvent corporation for unpaid shares cannot set ofif against the claim of the corporation a debt due him by the latter. By treasurer of corporation. — Russell v. Presbyterian Church, 1870, 15 Sm., 9. The treasurer of a corporation cannot set off an independent claim against the corporation when sued for money in his hands as treasurer. Same— Action on official bond.— Fields v. Kershaw, 1880, C. P., Dela- ware, 1 Del. Co., 103, 13 Lane. B., 68. The treasurer of a corporation can- not, nor can his sureties, in an action on the bond given for the faithful per- formance of his official duties, set off a claim due him as a corporator by the company. In action for earnings during seciuestration— Loan.— Heeler v. Turn- pike Co., 1850, 2 H., 162. In an action by a corporation for earnings which accrued during sequestration the defendant cannot set off a loan by him to the company made before the sequestration. SETTLEMENT OF TAXES. See Taxation. SHARES. See Stock and Stockholders, Taxation. SHERIFF'S SAI^E. See Sale SIGIVATURE. To application for, or acceptance of charter, see Creation of Corporations, Accept- ance and Assent. On power of attorney to transfer stock, see Power of Attorney. SI?IKII«IG FUND. Ford J). The Coal Co., 1868, 25 L. Int., 268. The courts will not control the discretion of directors in the matter of declaring dividends The direct- ors of a coal company have power to create a sinking fund out of their annual profits to secure the par value of the company's stock. But they cannot create a trust for the purpose of preventing the reversal or modification of such a policy by future boards of directors. •^^'^ -'■] SLANDER — SPECULATIVE DAMAGES. 329 SLAPIDER. Of co-member, see Disfranchisement. Temperance Mutual Benefit Assn. v. Schweinhard,1883, C. P , Lebanon, 3 C. C. R., 353. A corporation may maintain a suit for slanderous words directed against its corporate business. "SMALIv NOTES." Prohibition of issue, see Bills and Notes. SOCIAI. CLUB. See Disfranchisement. SOLICITOR. A'fe Office and Officer. SOLVENCY. Presumption of corporation's, see Bankruptcy. See Insolvency. SPECIALTY. See Bonds, Bills and Notes, Seal. SPECIFIC PERFORMANCE. Of contract to transfer sinck, see Stock and Stockholders, V. SPECULATIVE DAMAGES. See Eminent Domain, IV, 4. 330 SPRING STATUTES. [Part 1. Taking of, hy corporalion, see Eminent Domain. STATE. See Commonwealth. STATE B09IDS. Qwned by corporations, taxation of income from, see Taxation. STATE "WORKS.* See Public Works. STATUTE OE FRAUDS. See Frauds. STATUTE OE LIMIT ATIOBIS. iSee lAmitations. STATUTES, Acceptance of provisions of statutes, see Acceptance and Assent. Judicial notice of, see Evidence, Guaranty. Statutes creating corporations : strict construction of, repugnant proviso etc. , see Charter : setting forth, in action by corporation, see Pleading : in affidavit of de- fence, see Affidavits. Waiver of right to forfeit charier by passage of supplementary act, see Charter. Clearness in title of incorporating Statute. — Rogers v. Manufacturers' ImpTOvement C!o., 1885, 43 L. Int., 66. An act of Assembly entitled "An act to incorporate the Mannfactniers' Improvement Company." incorporat- ing a company to improve a water highway, erect dams, charge toll etc., is nnconstitntional, the title not clearly expressing the purpose. *See Fart m, Bailroad Companies, Canal Companies. Pari /.] STATUTES — STAY OF EXECUTION. 331 Creating, renewing or extending more than one charter by one act of Assembly.— Cleveland &c. Railroad Co. v. Erie, 1856, 3 C, 380. To cieate, renew or extend a charter, within the Constitutional prohibition against the creating, renewing or extending of the charters of more than one corporation by the same act of Assembly, means to make a charter which never existed before, to revive an old one which has expired or to increase the time for the .existence of one which would otherwise reach its limit at an earlier period ; the mere increase of the privileges of more than one corpor- ation by the same act of Assembly is not within the prohibition. The application of statutes to corporations.— Lehigh Bridge Co. v. Lehigh Coal & Nav. Co., 1833, 4 E., 8. To permit the application of a stat- ute to corporations, it is not necessary that they should be embraced within its letter, if they are within its equity. Union Canal Co. r. Dauphin County, 1869, 3 Brewst., 124. The word " persons " in statutes applies to corporations. Mechanics' Bank v. Miners' Bank, 1883, C. P., Carbon, 13 W. N. C, 515, 41 L. Int., 312. The word "person" ina statute may include corporations, private and municipal, although personal pronouns are used in the same connection and relation. See also Abbiteation and Taxation, iv. Repeal of statute as affecting statutory remedy. — Lackawaxen Turn- pike Co. u. Comm., 1848, 9 B., 20. Proceedings to compel a corporation to perform a corporate duty the form of which is prescribed in the charter by reference to another act of Assembly, are not affected by the repeal of the statute referred to ; nor by the repeal of the charter provisions as to such proceedings by an act of Assembly passed after the perfecting of the proceed- ings under the old form. SXAXUXOITY RCItlEDIES. See Action and Suit. Relating to eminent domain, see Eminent Domain. Repeal of statute as affecting, see Statutes. STAY OF EXECIJXIOBJ. See Execution, Eminent Domain. 332 STOCK AND STOCKHOLDEES. 'Part I. SXOCK AND STOCKHOLDERS. I. NATURE AND OWNERSHIP OF STOCK. II. THE ISSUE AND SALE OP STOCK: IN GENERAL: DE- FERRED AND PREFERRED STOCK : INCREASE : UNAU- THORIZED ISSUE : MISAPPROPRIATION OF STOCK BY DI- RECTORS. III. SEIZURE OF STOCK ON EXECUTION : ATTACHMENT ETC. IV. THE CORPORATION'S LIEN FOR HOLDER'S INDEBTEDNESS. V. TRANSFER. VI. LIABILITY OF Sli'OCKHOLDERS. 1. Liability foe Unpaid Instalments of Stock : In General. 2. As Affected by the Transfer of Stock. 3. Enforcement of Liability: Action and Suit: Notice of Calls Etc. 4. Individual Liability : Assessments. VII. THE GENERAL POWERS, RIGHTS, DUTIES AND LIABILITIES OF STOCKHOLDERS. As to subscription for stock, see Subscription. Taxation of stock, see Taxation. I. Xature and O-wnersliip of Stock. See also III and V. Stock book as evidence of ownership. — Bank of Commerce's Appeal, 1873, 23 Sm., 59. The officers of a corporation who upon its dissolution have distributed the assets among the stockholders appearing upon the hooks are not liable to the assignee of a stockholder who holds the latter's certificate but to whom the stock was never transferred upon the books of the company. As between corporation and corporator, the stock-book is the evidence of their relation. The corporation need consult merely its own record. See also St. Nicholas Coal Co., 1880, C. P., 9 W. N. C, 403. Baker's Appeal, 1885, 12 Out., 510. Where a transfer of stock is made upon the books of a corporation, but the transferee delivers to the transferer the certificate and an irrevocable power of attorney to re-transfer at the ex- piration of a certain period, the transaction being intended solely for the pur- pose of enabling stockholders to sell temporary privileges in the corporate property to outsiders, the name upon the stock-book will not be regarded as conclusive evidence of ownership ; and such transfers may be restrained by co-stockholders. Corporation'sfalsedenialofplaiatifTs ownership.— Jacobs v. Telford &c. Turnpike Co., 1886, C. P., Montgomery, 2 Montgom. Co., 101. The ovmership in stock of one to whom it has been assigned by an indorsement Part /.] STOCK AND STOCKHOLDERS 333 upon the certificates without any transfer, or note of the assignment, upon the books of the company, is not affected by the company's tort in stating, in answer to interrogatories in attachment against the assignor, that the stock was the property of the latter, though having notice of the assignment. Such an assignee may maintain an action against the corporation to recover dividends accruing during his ownership. He cannot, therefore, recover damages for the refusal to permit a transfer unless it appears that he has thereby lost an advantageous sale. Dealings with stock by agent— Estoppel. — Larkin's Appeal, 1861, 2 Wr. , 457. Where a, feme sole holds stock in a corporation in the name of a trustee, in accordance with the by-laws, discharging her liabilities as a corp- orator from time to time, through a third person as an agent, and such agent borrows money from the corporation upon the stock as his own, and gives a mortgage therefor, which finally is satisfied by his pretended surrender of the stock, the corporation is liable to the/eme sole for the value of the stock. She is not estopped by the silence of her trustee in permitting the agent's name to be called instead of his own for payment of dues. Execution sale. — What passes under, — Pittsburgh & Connellsviiie BailroadCo. v. Allegheny, 1869,' 13 Sm., 128. An execution sale of corpora- tion stock passes to the purchaser merely the stock, and not the right to in- terest thereupon payable, under a special contract, to the previous holder as a bonus or premium for subscribing. Hogg's Appeal, 1878, 7 Nor., 195. A sheriff's sale of the property and franchises of a corporation does not vest in the purchaser the unpaid stock subscriptions or other choses in action of the company. Stock distributed as dividend etc.— When principal and when in- come as between legatee for life and remainderman.— Earps' Appeal, 1857, 4 C, 368. For purposes of distribution among beneficiaries in a will, entitled under its terms to the principal aod to the income respectively oif the testator's estate, profits in excess of the regular dividends upon stock owned by the testator, accumulated thereon at the time of his death, are to be considered principal, and profits so accumulated after his death are to be considered income ; where profits are divided among the holders in the form of certificates of new stock, the character of the new stock is determined by the fund which its' represents. Wiltbank's Appeal, 1870, 14 Sm., 256. "Where the income of certain stocks is given to a person for life and the stocks themselves to another, an increase of stock distributable among the stockholders upon payment of a certain sum, is income. A sale of the right of subscription to sUch new stock stands ujion the same footing. Moss' Appeal, 1877, 2 Nor., 264. Where a corporation, under a special legislative authoiity, increases the limit of its capital stock, giving to each stockholder an option to subscribe at par for as many shares of the new stock as they held of the old ; and an executor holding shares formerly owned by the defendant sells some of his options to purchase and with the proceeds purchases new stock, the latter is, as between a remainderman and a legatee for life, capital, not profits. See also Biddle's Appeal, 1882, 3 Out., 27 ; Condy's Estate, O. C, 1881, 10 W. N. C, 319. Vinton's Appeal, 1882, 3 Out., 434. Where a corporation sells a part of its original franchise and property and distributes the proceeds of the sale as a dividend among its stockholders, such dividend is, as between a legatee for life and a remainderman of stock in such corporation, capital, not income : affirming 11 W. N. C, 49, 15 Phila., 218, 38 L. Int., 12. Thomson's Estate, 1882, 11 W. N. C, 482, 15 Phila., 546, 39 L. Int., 208. Where a corporation purchases its own stock with profits earned since the death of a testator who has bequeathed stock in the corporation to one person for life vnth remainder to another, the proceeds of a purchase of such stock by the testator's trustees, under an option given by the corporation to its old stockholders, are income of the estate, not principal. Eastwick's Estate, 1882, O. C, 12 W. N. C, 67, 15 Phila., 569, 39 L. Int., 334 STOCK AXB STOCKHOLDERS. [Part I. 265. As between a legatee for life of corporate stock and a remainderman, a dividend earned by the corporation since the death of the testator who be- queathed the stock, is income, not capital. Where such a dividend is not payable in cash, but at the time of declaring it, the corporation increase its capital, ofifeis the option to subscribe to the new stock to its old stock- holders and agrees to give credit for ttie amount of such dlWdends to those subscribing, the legatee for life will be decreed to be the owner of the new stock so subscribed for to the extent to which such dividend was used to purchase it. Comm. V. Western Union Telegraph Co., 1884, C. P., Dauphin, 15 W. N. C, 331, 41 L. Int., 194. Additional stock distributed among holders in pro- portion to the number of their shares is a stock dividend when it represents surplus earnings invested in the corporations' plant and in leased property. A mere arithmetical increase of the shares, not representing earnings or profits, is not a dividend. II. The Issue and Sale of Stock : In General : De- ferred and jPreferred Stock : Increase : Unau- tfaorized Issue: misappropriation of Stock tiy Directors. See further, as to the right to subscribe for stock, Subscription, II. Corporation' s duty to permit transfer and liability for refimng or for negligence in permitting, see V. Citizenship of corporators as affecting citizenship of corporation, see CUizenship of Corporniions. See also Dividends. Corporation's purchase of its own stock. — Coleman v. Columbia Oil Co., 1865, 1 Sm.. 74. Where a corporation purchases a block of itsown stock, and alterward, by resolution, divides the stock among the then stockholders pro rata, upon the basis of the shares then held by them respectively, a holder cannot, in a suit brought by him against the company to enforce a claim to a pro rata upon the basis of the number of shares held by him at the time of the purchase, deny that the purchase in question was an exercise of a corporate franchise or was justifiable upon any principle of necessity ; if such a stockholder meant to disaffirm the purchase, he should have done so by injunction to restrain it ; by bringing such an action he affirms it, and as to him it is a valid corporate act. Purchase of entire stock hy one individual where charter reanires five directors. — Insurance Bank v. Bank of The United States, 1847, D. C, 4 Clark, 125, 7 P. L. J., 129. The purchase by a single individual or corp- oration of the entire stock of a corporation cannot be invalidated, where there is no charter restriction upon the power to sell the stock, by the fact that such a purchase prevents the fulfilment of a charter requirement, e. g. that there shall be five directors etc. The charter may be forfeited by the power which granted it, but the fact that such a purchaser may be thus compelled to surrender the stock and take the assets does not render the pur- chase invalid. Where the stockholders of a corporation, or those about to become stock- holders, agree to transfer the entire stock, the fact that the transfers were actually made does not in itself constitute such an adoption of the act by the corporation as will make the contract binding upon it, since it would have no right to refuse to permit the transfer. Part J.] STOCK AND STOCKHOLDEKS. 335 Deferred stock.— Philadelphia & Reading Railroad Co. »..Stichter, 1882, 11 W. N. C, 325, 29 Pitts. L. J., 379. A corporation may, under a general power to borrow money, issue irredeemable bonds, at a large discount, not entitled to interest until after the common stock had received a dividend of six per cent., then to take all the revenues of the corporation up to six per cent., and then to rank with the common stock. Such a method of borrowing cannot be objected to on the ground that it is usurious or that it is an issuing of deferred stock. See contra McCalmont v. Philadelphia & Reading Railroad Co., 1881, U. S. C. C, 10 W. N. C, 338. Preferred stock. — Curry ». Scott, 1867, 4 Sm., 270. The legislature may enlarge the powers of the managers of a corporation (as by authorizing them to issue preferred stock) with the assent of the shareholders, and no one stockholder, by refusing his assent, can hinder the exercise of such enlarged powers. Hoffman v. Pennsylvania Warehouse Co., 1886, C. P., 43 L. Int., 250, 1 C. C. E., 598. Where the directors of a fully organized corporation with a paid in capital of $250,000, chartered before the adoption of the present Con- stitution, were authorized by its charter to increase its capital to $1,000,000 and to borrow money on bond and mortgage, they may, as a necessary in- ducement to the purchase of increased stock at par, the original stock being below par, issue preferred stock under the following terms : the owners of such stock to receive dividends, if earned, at legal interest before dividends are paid on the original stock ; the owners of the latter then to receive divi- dends, if earned, at legal interest ; and any surplus profits to be divided equally between the common and preferred stock ; provided that when the net earnings on all Stock amount to seven per cent. , one per cent, shall be placed in a sinking fund and invested until such fund amounts to $100,000, when it shall be devoted to the redemption of the preferred stock in the in- verse order of issue, at par ; another sum of $100,000 to be thereupon col- lected and used in like manner, and so on until all the preferred stock shall be cancelled ; its holders to have the privilege of exchanging their stock, when called, for common stock ; the preferred stock to be offered ^ro rata to the holders of common stock. West Chester & Philadelphia R. Co. v. Jackson, 1875, 27 Sm., 321. The issue of preferred stock is a contract of loan between the corporation and the taker; it is not designed as a permanent part of the capital, but is in the nature of a mortgage upon the property of the corporation. The holders cannot be compelled to enter into a subsequent arrangement by which pre- ferred and common stock are exchanged for "consolidated preferred stock." When the preferred stock calls for dividends at a certain per cent., payable, semi-annually, they must be paid before any dividends can be paid upon other stock, and the holder is entitled, when the dividends become payable to interest for the whole period since the issue, notwithstanding astipulation that the dividends shall be payable only out of the net earnings of the corp- oration, that provision determining merely the time of payment. Culver V. Reno Real Estate Co., 1879, 10 Nor., 367. Where a real estate company issues preferred stock, agreeing to at all times apply any funds in its treasury or resulting firom the sale of real estate to the redemption at par of any portion of the stock upon demand by the holder, the latter has no right to its redemption out of any specific assets other than proceeds of sales of real estates, nor out of any money in the treasury, where the withdrawal of the funds for that purpose would interrupt or cripple the business of the company. Assumpsit. — ^West Chester & Phila. E. Co. v. Jackson, 1875, 27 Sm., 321. Assumpsit is the proper remedy for a corporation's breach of its contract with respect to the payment of dividends in issuing preferred stock. Licrease of stock. — Columbia Bank v. WilliamsportGasCo., 1884, C. P., Lycoming, 41 L. Int., 498. Where all the stockholders of a corporation which under its charter possesses the right to increase its stock, meet in due S36 STOCK AND STOCKHOLDERS. [Pari I. form and by unanimous consent increase the stock, but omit to give notice as required by the charter, a stockholder claiming under one who was one of the stockholders at the time of such increase cannot question the validity of the increase. That can be done only by thp State. Affirmed in 16 W. N. C, 357. See, further, Incbbase op Capital. Unauthorized and fraudulently over-issued stock— Corporation's liability for,— Eights of holders.— Hassinger's Case, 1840, 2 Ash., 287. A corporation is bound by unauthorized certificates of stock when issued in the form required by the charter and not distinguishable by the holders from genuine certificates, nor in excess of the authorized amount. See BANKEUPTcy. Bank of Kentucky j). Schuylkill Bank, 1846, C. P., Phila., 1 Parsons, 180. There is no obligation upon the purchaser of corporate stock to see to the surrender of the preceding certificate or its due assignment. An omission so to do does not affect his right to recover from the corporation for a fraudulent over-issue of stock by its agent. Bona fide holders of fraudulently over-issued stock may either claim to be admitted as corporators or to be compensated by the corporation for the fraud. Affirmed by Supreme Court. Willis «. Philadelphia & Darby Railroad Co., 1878, C. P., 6 W. K C, 461, 13 Phila., 33, 36 L. Int., 47. Where the president of a corporation fraudu- lently issues certificates of stock, properly signed and sealed, in excess of the amount authorized by law, bona fide purchasers of such stock are entitled to recover from the corporation, when the full number of authorized shares have already been issued, an aniount equal to the value of the stock at the time of the assessment of damages. But see Mount Holly Paper Co. 's Appeal, infra. Mount Holly Paper Company's Appeal, 1882, 12 W. N. C, 228, 39 L. Int., 312. Where the stock fraudulently over-issued by the president of a corporation stands in his name, and he is indebted to the corporation, a law providing that no certificate should be transferred, so long as the holder thereof was indebted to the company operates to deprive the transferees of the fraudulent certificates of any recourse against the company, where they have not taken the precaution to have the shares transferred upon the hooks of the company, or attempted to have such a transfer, Where such a trans- fer is demanded, and an action for a refusal is brought, the indebtedness of the president is a valid defence, even if the certificates be valid. A fortiori it is a valid defence when the certificates are fraudulent. See also People's Bank v. Kurtz, 1882, 3 Out., 344. Wright's Appeal, 1882, 3 Out., 425. A corporation cannot be held liable for the unauthorized act of its president in obtaining genuine stock from a holder, giving the latter his personal due bill therefor, transferring the stock under a power of attorney and subsequently issuing to such former holder certificates of an equal number of sh^es of fraudulently over-issued stock. In such a transaction the president, acting/ under a power of attorney, is merely the agent of the other party. Stock purchase for benefit of corporation— Directors' misappropria- tion of,— Kimmell v. Geeting, 1853^ 2 Gr., 125. J< seems that after the direct- ors of a corporation have passed a resolution dinecting one of their number to purchase stock of the corporation for the benefit of the company, they cannot treat the purchase as having been made for their own benefit, and divide the stock among themselves. A change in the time and place of the sale &om that published when the reslntion was passed, is not a revocation of the au- thority to purchase for the benefit of the stockholders. Where directors of a corporation have divided among themselves stock purchased by one of their number under a, resolution of the board which contemplated that the purchase should be for the benefit of all the stock- holders, a transfer of the stock on the books to the directors and the direct- ors' voting such stock at the corporate elections constitute a sufficient means Part /.] STOCK AND STOCKHOLDERS. 337 whereby the stockholders might discover the fraud. Therefore a stockholder Avho has neglected for a period of six years after such possibility of discovery to seek redress for such fraud is debarred from bringing an action on the case against the directors for conspiracy. See als3 Kimmell v. Stoner, 1851, 6 H., 155. Carpenter v. Burden, 1843, C. P., 2 Parsons, 24. An injunction granted at theinstance of certain stockholders in a corporation to restrain the direct- ors from disposing of the stock in a way alleged to be to the injury of the stockholders will upon application be dissolved when it is shown that since it was granted the same directors have at a regular corporate election been re-elected and formal resolutions passed by a majority of the stockholders approving of their management and condemning the action of the stockhold- ers who applied for the injunction. III. Seizure of Stock on Execution: Attacbment Etc. Corporation' s false answers to interrogatories in attachment, as affecting ownership of stock, see I. • What passes topurcJtaser at execution sale, see I. See also Attachment. Gardiner v. Bank of Pennsylvania, 1807, 4 Y., 377. There is no method of compelling a transfer by a corporation of a share of its stock to the plain- tiff who has obtained a judgment in foreign attachment against the corpora- tion as garnishee. Unit^ States v. Vaughan, 1811, 3 Biim., 392. Where stock has been sold and the certificates and a power of attorney to transfer delivered to the pur- chaser, it cannot be attached by a creditor if the vendor, though his name still stand upon the books of the company as the owner. See also Finney's Appeal, 1868, 9 Sm., 398. Hawley v. The Bank, 1840, 10 Wts., 230. The capital stock of a corpora- tion ovnied by itself and in its own possession cannot be attached under the Act of June 16, 1836 for a debt due by the corporation itself. Bonafifon v. Canal Co., 1860, C. P., 4 Phila., 29, 17 L. Int., 52. Stock standing in a defendant's own name may either be seized upon afi. fa. or attached in the hands the corporation. Littell V. Scranton Gas & Water Co., 1862, 5 Wr., 500. In an action for damages against a corporation for a refusal to transfer stock which before the demand for a transfer has been attached by the assignor's creditors and sold by the sheriff, the plaintiff must show affirmatively that the transfer to him was for a valuable consideration : affirming 2 Luz. Leg. Obs., 82. Stoever v. Stoever, 1876, C. P., 3 W. N. C, 169. Upon judgment against the garnishee in attachment execution against stock of defendant in the corp- oration garnishee, the fl. fa. must issue against " the original defendant ; " a fl. fa. commanding the sheriff to levy upon the goods etc. of the garnishee will be set aside. Peterson v. Sinclair, 1877, 2 Nor. , 250. A balance of a subscription m money to the stock of a corporation is attachable by its creditors as other debts are. Early's Appeal, 1879, 8 Nor., 411. Stock of a corporation assigned to the corporation itself as collateral security for a loan cannot be sold under an ex- ecution against the assignor. See also Eby v. Guest, 1880, 13 Nor., 160. Bunn's Appeal, 1884, 9 Out., 49. The unpaid and uncalled amounts due upon the stock of a corporation cannot upon its insolvency be attached by a judgment creditor of the corporation, since there can be no liability to pay until an assessment and decree by a competent authority. Such unpaid in- stalments constitute a trust fund for the benefit of all the creditors. Christmas v. Biddle, 1850, 1 II., 222. Stock of a foreign corporation, trans- ferable by the law of ita creation only on the books of the corporation, is not subject to foreign attachment under the laws of Pennnsylvania. 22— MUEPHY. 338 STOCK AND STOCKHOLDERS. [Part I. Greenwood );. Manufacturing Co., 1883, C. P., 13 W. N. C, 447. Stock in a foreign corporation held by a non-resident is not subject to foreign attach- ment, although the foreign corjioration has an office and transacts its prin- cipal business in the jurisdiction of the court from which such attachment issues. IV. The Corporation's Lien for Holder's Indebted- ness. Corporation's refusal to permit transfer, see V. Indebtedness of president who has fraudulently over-issued stock, see II. Corporation has no common law lien. — Merchants' Bank v. Shonse, 1883, 14 W. N. C, 133, 40 L. Int., 326. Corporations have no common law lien upon their stock for the amount of debts due them by the holders. See also Steamship Dock Co. v. Heron, 1866, 2 Sm., 280. By-law prohibiting transfer — Retroactive effect. — Steamship Dock Co. V. Heron, 1866, 2 Sm., 280. A resolution of a board of directors prohib- iting a transfer of stock by anyone indebted to the corporation cannot be given a retroactive eflfect. Authority to make by-law creating lien. — Geyer v. Insurance Co., 1887, D. C, Allegheny, 3 Crum., 41, 14 Pitts. L. J., 266. A charter pro- vision that the company's stock shall be assignable and transferable on the books of the company "according to snch rules and by-laws, and subject to such restrictions and limitations as the stockholders may establish ' ' is suffic- ient authority for a by-law providing that no such transfer shall be per- mitted while the owner of the stock is indebted to the company. Such a by- law does not require express authorization in the charter. As against whom by-law is valid. — Morgan v. Bank of North America, 1822, 8 S. & E., 73. A by-law or a usage of a corporation forbidding the transfer of stock by a holder indebted to the corporation is valid as against a stockholder to whom such a usage was known and against his voluntary assignee for creditors. Lien does not give right to sell stock. — Tete v. The Bank, 1869, C. P., 26 L. Int., 157. A corporation which is entitled by its charter and by-laws to prohibit the transfer of its stock while the holder is indebted to it is en- titled to a lien on the stock and to prevent its transfer, but it is not by virtue of such provision entitled to sell it. Debtor's surety— Lien cannot be shifted to protect different debt.— Kuhns V. "Westmoreland Bank, 1833, 2Wts., 136. A corporation's lien upon its stock inures to the benefit of the debtor's surety, and cannot be shifted by the corporation for the protection of a dififerent debt than that for which the surety bound himself. Debt barred by statute of limitations— Indebtedness of firm.— Geyer V. Insurance Co., 1867, D. C, Allegheny, 3 Cram., 41, 14 Pitts. L. J., 266. Where a by-law provides that no stock shall be transferred on the books of the company while the owner is indebted to the company, the latter has by ■virtue of snch by-law a lien on such stock, and may refuse to permit a trans- fer thereof until the debt is discharged. The lien is not lost where the debt is barred by the statute of limitations. Indebtedness to the company by a firm of which the owner of the stock is a member gives the corporation the right of lien. Judgment against debtor stockholder— Subrogation of other cred- itors.— Ramsey's Appeal, 1834, 2 Wts., 228. A corporation holding a first judgment against one of its stockholders, upon whose stock the claim of the corporation is a lien, is entitled, upon a sale of the debtor's property, to be Part /.] STOCK AND STOCKHOLDKKS. 339 paid the entire amount of its judgment from the proceeds ; but the other creditors are entitled to be thereupon subrogated to the rights of the corpor- ation so that they may levy upon and sell the stock. Claim of lien for debt of one of several legatees of stock.— Presbyter- ian Congregation v. Carlisle Bank, 1847, 5 B., 345. Where a testator has bequeathed forty shares of bank stock to four persons in equal shares, and the bank has permitted a transfer by three of the legatees of thirty of the shares, it cannot afterward, upon the attainment of majority by the fourth legatee, refuse to permit a transfer by him of the remaining ten shares, on the ground of the indebtedness to the bank of two of the three other lega- tees. The permission of the bank that three-fourths of the stock should he so assigned was an assent by it to the severance of the title of the fourth legatee and notice that the remaining shares were his sole property. In an action against the bank for a refusal to permit such transfer it is error to re- ject evidence of an agreement between the legatees and the executor that the stock should be divided, the thirty shares so transferred and the remain- ing ten retained for the fourth legatee until majority. "V. Transfer. Transfer of stock upon which corporation has a Hen, see IV. Liability of transferers and transferees for unpaid instalments, see VI. Vote by stockholder afttr transfer, sec Elections. Corporation's duty to transfer— Claimant's right— What is sufficient authority to corporation. — Clark v. Ashland Saving Association, 1880, C. P., Schuylkill, 1 Schuylk. Leg. Eec, 337. A court of equity will not decree a transfer of corporate stock to a claimant thereof unless the latter's right to it is first established bylaw or acknowledged. German Union Building Association v. Sendmeyer, 1865, 14 Wr., 67. A corporation is bound to transfer stock upon the demand of a certificate holder who produces a power of attorney to transfer executed in blank. The holder may fill up the blank. Lehigh Coal & Navigation Co, v. Mohr, 1877, 2 Nor., 228. The mere pre- sentation of the certificates by an alleged agent of a holder of a corporation loan is not sufficient authority to the corporation for a transfer. Same — Authority of trustee. — Bayard v. Farmers' & Mechanics' Bank, 1866, 2 Sm., 232. A corporation is entitled to demand evidence of the au- thority of a trustee to make a transfer of stock standing in his name as trus- tee. See also Bohlen's Estate, 25 Sm., 304. Lehigh Coal & Navigation Co.'s Appeal, 1879, 7 Nor., 499. A corporation cannot be compelled by a decreee in equity to transfer stock to the success- ors in a trust, without notice to the eestuis que trust and oyer of the documents upon which the complainants base the right. Same— Laches in demanding transfer.— Whetham v. Penna. & New York Canal & Railroad Co., 1873, 30 L. Int., 76. A bill in equity against a corporation for stock by a holder whose title is in equity by assignment of certificate is barred by complainant's delay for ten years to demand a trans- fer. Remedies for refusal to permit transfer .—Birmingham Fire Ins. Co. v. Coram., 1879, 11 Nor., 72. Mandamus will not lie to compel a transfer of stock ; the proper remedy is an action on the case for damages. See also Presbyterian Congregation v. Carlisle Bank, 1847, 5 B., 345; Boyer «. Sav- ing Fund, 1877, C. P., Schuylkill, 1 Schuylk. Leg. Eec, 231; Jacobs v. Tel- ford &c. Turnpike Co., 1886, C. P., Montgomery, 2 Montgom. Co., 101. Morgan v. Bank of North America, 1822, 8 S. & E., 73. A special action of assumpsit lies' for a refasal to permit a transfer of stock. 340 STOCK AXD STOCKHOLDERS. [Part T. Jacobs r. Telford &c. Turnpike Co., 1886, C. P., Montgomery, 2 Montgom. Co.. 101. The remedy for a refusal to permit or properly note upon the hooks of a corporation a transfer of stock is a special action on the case. The refusal is a tort, which may be waived and an action brought in assumpsit only where the circumstances raise an implied contract. But assumpsit may be brought for the recovery of such dividends as were due at the date of the institution of the suit. Same — When plaintiff must show consideration. — Littell v. Scranton Gas & Water Co., 1862, 6 Wr., 500. In an action for damages against a corp- oration for a refusal to transfer stock which, before the demand for a trans- fer, has been attached by the assignor's creditors and sold by the sheriff, the plaintiff must show affirmatively that the transfer to him was for a valuable consideration : affirming 2 Luz. Leg. Obs., 82. Same — When et[1lity will act. — Sank v. Steamship Co., 1864, 5 Phila., 499, 21 L. Int., 389. Equity has jurisdiction to compel a private corpora- tion whose stocks are not upon the market and have no certain value to per- mit a transfer of the legal title thereto to the owner of the equitable title. There is no adequate remedy at law. Goodwin Gas Stove & Meter Co., 1888, 45 L. Int., 36. Equity has juris- diction to decree specific performance of a contract to transfer stock in a purely business or private corporation where the shares have no recognized market value and where their value, even if ascertainable, would not neces- sarily furnish the proper measure of damages. Same — ^Plaintiff in foreign attachment. — Grardiner v. Bank of Penn- sylvania. 1807, 4 Y., 377. There is no method of compelling a transfer by a corporation of a share of its stock to a plaintiff who has obtained a judg- ment in foreign attachment against the corporation as garnishee. Measure of damages. — ^West Branch & Susquehanna Canal Co.'s Appeal, 1870, 32 Sm., 19. The measure of damages for a corporation's refusal to permit a proper transfer of stock upon its books is to be ascertained from the actual value of the stock at the time of such refusal. Corporation's liability for permitting improper transfer.— Pennsylva- nia Railroad Co.'s Appeal, 1878, 5 Nor., 80. A corporation which permits a transfer of stock upon a power of attorney fraudulently used after the death of the maker, and thirteen years old at the time of the transfer, although liable ordinarily if it neglects the duty of inquiry under such circumstances, is not liable notwithstanding such neglect, if the perpetration of the fraud was made possible by the misplaced confidence of the true owner. A brnia flde transferee who has in turn transferted the shares before the suit brought, is not liable : renerging (as to the first point) 2 W. N. C, 363. It seems that the fact that the signatures to a power of attorney to transfer stock are thirteen years old, is snfScient to put the corporation upon in- quiry. Chambersburg Ins. Co. v. Smith, 1849. 1 J., 120. Where supervision of the transfer of stock has, by their uniform practice, been entrusted by the direct- ors of a corporation to the secretary, and such practice thereby becomes a tacitly adopted rule of the company, of which the public has notice and upon which the pubUc acts, a transfer permitted by such officer is binding upon the corporation notwithstanding that an unenforced by-law might be construed as prohibiting it. Proper evidence of directors' assent.— Pittsburgh & Connellsville R. Co. ■». Clarke, 1857, 5 C, 146. The proper evidence of the assent of a board of directors to a transfer of stock is a recorded resolution adopted when the board was in session ; parol e^^dence is admissible only when the minute of such resolution is lost or destroyed. Power of corporation to establish agencies for tranfer— Agency out- side of incorporatang State.— Bank of Kentucky ». Schuylkill Bank, 1846, CI.,] 1 arsons, 180. Where a charter authorizes the transfer of stock at Part /.] STOCK AND STOCKHOLDERS. 341 such places as the president and directors shall by their by-laws prescribe, and the president and directors pass a by-law prOTiding that the stock shall be transferable at A. and "in other places where the bank shall appoint agents " for the purpose, a resolution of the president and directors estab- lishing snoh an agency at a place particular is a valid exercise of the author- ity conferred by the charter and by-law. A provision that the stock shall be transferable at such places as the pres- ident and directors shall prescribe is sufficient authority to the corporation to establish a transfer agency outside of the State of its creation. Affirmed by the Supreme Court. Transfer not noted upon corporate books— Dividend of corporate as- sets upon dissolution.— Bell v. Lafferty, 1881, 1 Penny., 454. The holder of certificates of stock in a corporation, which were delivered to him with povrei-sof attorney, signed in blank by the owners, as collateral security, but which stock was not transferred upon the books of the company, cannot re- cover from a trustee of the company the amount of a dividend of its assets at its dissolution paid bona fide and without notice to a third party who pro- duced a later assignment of such dividend from the owner, without the cer- tificates. See further Dissolution, IV. Transfer to pay particular debt— Power of attorney— Owner's rights. — Denny v. Lyon, 1860, 2 Wr., 98. When a power ot attorney to transfer stock is given for the sole purpose of paying a particular debt, it is exhausted by its use for that purpose, and the owner is thereupon entitled to the return of the stock, notwithstanding that the attorney has subse- quently transferred it under the power for another purpose by erasing the name first inserted and inserting another. Omission to sign transfer as agent. — Chambersburg Ins. Co. v. Smith, 1849, 1 J., 120. A stockholder empowered the secretary of the corporation in writing to transfer certain stock. In pursuance of such power the secre- tary made an entry of the transfer in the books, writing after such entry, "See paper filed." The paper referred to was his power to transfer. This he wafered to the book, and attested the entry of transfer as secretary, omit- ting to sign the transfer as attorney. Held that this omission did not vitiate the transfer. Transfer not noted on corporate books— Attachment by assignor's creditors. — Oerther V. Minersville Bank, 1877, C. P. , Schuylkill, 1 Schuylk. Leg. Eec, 69. Transfers of corporate stock which have not been entered on the books of the corporation are valid as against creditors of the assignor and cannot be taken by them in execution. Non-compliance witli a charter pro- vision that all transfers must be entered upon the books of the company does not affect this rule. Such provisions are solely for the benefit of the corpor- ation. United States v. Vaughan, 1811, 3 Binn., 392. Where stock has been sold and the certificates and a power of attorney to transfer delivered to the pur- chaser, it cannot be attached by a creditor of the vendor, though his name still stand upon the books oi the company as owner. See also Finney's Ap- peal, 1868, 9 Sm., 398. VI. Liability of Stockliolders. Under this head are included the decisions relating to the liability of stock- holders assumed toward the corporation and its creditors in assuming the ownership of stock and with respect to such stock ; also a lew cases upon in- dividual liability. For the individual liability of stockholders in special classes of corporations, see Part III. For the more general liabilities and rights of stockholders, considered rather as members of corporations than with respect to ownership of stock, see VII. 342 • STOCK ASfD STOCKHOLDEES. [Part I. 1 lAabilityfor Unpaid Instalments of Sfocfc; In General. When holder is estopped from denying liability.— Miller's Appeal, 1881, 1 Penny., 120, 39 L. Int., 72. A stockholder of an insurance corpora- tion who purchases Its stock, giving his note for the price, merely to enable the corporation to meet the inspection of the insurance commissioner and with the understanding that the stock was to be after such inspection surren- dered and the notes cancelled, is nevertheless primarily liable, after such sur- render and cancellation have taken place, to the creditors of the company until he has paid an amount upon each share of such stock equal to the amount paid by the ordinary stockholders. Such a transaction, although in entire good faith as between such a stockholder and the ordinary stockholders, is a fraud upon the company's creditors. German Ins. Co. v. Strahl, 1878, C. P., Erie, 13 Phila., 512, 35 L. Int., 333, 25 Pitts. L. J., 131. One who gives his bond to a corporation for money due for his subscriptions to its stock is liable upon the bond to the creditors of the corporation upon the insolvency of the latter, notwithstanding a pri- vate agreement with the officers of the corporation that the giving of the bond should be treated "as amere matter ofform." Such a contract, though good as between the subscriber and the corporation, is void as to the corpjr- ation's creditors. The collection of such a bond by the corporation's receiver will not be stayed merely because it has not been ascertained that it will be necessary in order to pay the debts of the corporation. See also Comm. ■». Maaufac- turers' Ins. Co., 1875, C. P., Dauphin, 11 Phila., 550, 32 L. Int., 92. Duninishment of liability by supplement to charter.— Woodhouse v. Commonwealth Ins. Co., 1867, 3 Sm., 307. Where the liability of a stock- holder to the corporation has been diminished by a supplement to the chart- er, reducing the par value of the stock, a creditor of the corporation, who stands in its place with respect to the stockholders, cannot enforce against .the stockholder the latter's full original liability, although the corporation holds the stockholder's note for the balance which would have been due had not the par value been reduced. Holder of stock as collateral. — Aultman's Appeal, 1881, 2 Out., 505, 39 L. Int., 247. "When stock is transferred as collateral and stands in the name of the pledgee, the latter incurs the liability of a beneficial owner. Upon insolvency. — Aultman's Appeal, 1881, 2 Out., 505. A stockhold- er, whether original or holding by transfer, cannot divest himself of liabil- ity after the corporation is insolvent. Same— Capital as trust fund for creditors.— Bunn's Appeal, 1884, 9 Out. , 49. The capital stock of a moneyed corporation is a trust fund for the benefit of its creditors, and the latter may, upon its insolvency, compel by bill in equity the payment of the unpaid capital stock in discharge of their debts. See also Bank of Virginia v. Adams, 1850, C. P.. 1 Parsons, 534; Alli- son V. Mountain City Banking Co., 1877, C. P., Schuylkill, 1 Schuylk. Leg. Eec, 111. Same— Attachment of unpaid amounts.— Bunn's Appeal, 1884, 9 Out., 49. The unpaid and uncalled amounts due upon the stock of a corporation cannot upon its insolvency be attached by a judgment creditor of the corp- oration, since there can be no liability to pay until an assessment and decree by a competent authority. Such unpaid instalments constitute a trust fund for the benefit of all the creditors. See Peterson v. Sinclair, infra. Same— Set-off by stockholder.— Macungie Bank v. Bastian, 1881, 10 W. N. C, 71. The capital stock of a corporation, whether fully paid or partly outstanding in the hands of subscribers, is a trust-fund for the benefit of its creditors. A stockholder indebted to an insolvent corporation for Fart 7.] STOCK AND stockholders. 343 unpaid shares cannot set off against the claim of the corporation a debt due him by the latter. Stockholders of foreign corporations. — North v. Weaver Electric Mail Box Manfg. Co., 1887, C. P., 3 C. C. R., 316. The courts of Pennsylvania have jurisdiction to compel a foreign corporation having its principal place of business in this State to disclose the names of its stockholders and collect unpaid subscriptions to satisfy its creditors. Bank of Virginia v. Adams, 1850, C. P., 1 Parsons, 534. A Pennsylvania court cannot entertain a bill against a foreign corporation to compel its stockholders residing in this State to pay unsatisfied instalments upon their stock, for the liquidation of debts due by the corporation to the complainants. Action by foreign corporation to recover unpaid instalments.— Mer- rimac Mining Co. v. Levy, 1867, 3 Sm., 227. In an action by a foreign corp- oration to recover instalments accruing upon stock while held by the de- fendant transferee, the court will be guided in its decision as to the liability of the holder by the rulings of the courts ot the State which chartered the corporation. See also Aultman's Appeal, 1881, 2 Out., 505. Liability of stockholders where obligation of corporation is guar- anteed. — National Loan & Building Society v Lichtenwalner, 1883, 4 Out., 100. Where a principal debtor is a corporation which has become insolvent and made an assignment for the benefit of its creditors, the creditor is not bound, before resorting to the guarantor, to enforce the liability of the stock- holders under the terms of the charter. The liability of the stockholders is secondary and sub modo, and they could be sued only for the balance due after the assets belonging to thei corporation had been distributed or, at least, ascertained. Attachment. — Peterson v. Sinclair, 1877, 2 Nor., 250. A balance of a subscription in money to the stock of a corporation is attachable by its cred- itors as other debts are. Stockholders as execution creditors. — Folmer v. Shenandoah Valley Bank, 1881, C. P., Schuylkill, 2 Sehuylk, Leg. Eec, 37. An injunction will not be granted to restrain execution creditors from selling the assets of an insolvent corporation on the ground that the property may at a sheriff's sale bring less than its real value, nor on the ground that the execution credit- ors are stockholders in the corporation and as such liable for assessments on their stock in case of any deficiency of assets. 3. As Affected, by the Transfer of Stock. Delaware & Schuylkill Canal Co. v. Sansom, 1803, 1 Binn., 69. A trans- feree of stock is liable to forfeiture of the same for failure to pay assessments, but he is not personally liable for the unpaid assessments where he has made no express promise to pay them in the contract of transfer, and the act of in- corporation provides only that the sTiares shall be subject to such payments. See also Palmer v. Mining Co., 1859, 10 C, 288. West Philadelphia Canal Co. v. Innes, 1837, 3 Whart., 198. Where a reg- ular assignment of stock has been made upon the booksof a corporation, and in the presence of the proper officer, as prescribed by the charter, in pursu- ance of a previous agreement of the partie. See Bills and Notes. STREET. See Jloads and Highways. Appropriation of -use of, under right of eminent domain, see Eminent Domain. 23 — Murphy. 354 SUBMISSIOX — SUBSCKIPTION. [Part I. SVBKIISSIO?!. See Arbitration. SVBPCENA. Duces tecum to corporate officer, see Emdxnux. S17BROGAXIOX. Eamsay's Appeal, 1834, 2 Wts., 228. A corporation holding a first judg- ment against one of its stockholders, upon whose stock the claim of the corporation is a lien, is entitled, upon a sale of the debtor's property, to he paid the entire amount of its judgment from the proceeds ; but the other creditors are entitled to be thereupon subrogated to the rights of the corpor- ation so that they may levy upon and sell the stock. SUBSCRIPXIOI«. I. THE CONTRACT IN GENERAL. II. THE EIGHT TO SUBSCRIBE : POWERS OF CORPORATION IN DISPOSITION OF STOCK. III. PAYMENT. IV. FRAUD IN OBTAINING SUBSCRIPTIONS. V. CONDITIONS. VI. RATIFICATION, WAIVER AND ESTOPPEL. VII. DISCHARGE AND RELEASE. iSiee aim Stock and Stockholdt i ■-. I. Tlie Contract in General. Subscription for specified object.— Pittshgh. & Stenbenville Railroad Co. V. Gazzam, 1858, 8 C, 340. To entitle a corporation to recover upon an al- leged contract to subscribe to its stock, it must clearly appear upon the face of the contract that it was the plaintiff company whose stock was subscribed. And it is not competent for the Legislature to provide that a promise to sub- scribe a certain amount for a specified object shall be deemed a subscription to the stock of a particular company. Part /.] SUBSCEIPTION. 355 Privity of contract.— Steamship Co. V. Murphy, 1867, D. C, 6 Phila., 224, 24 L. Int., 228. A subscription to the stock of a proposed corporation may be sued u pou by the corporation after it comes into existence. Such a contract is not void for want of either parties or consideration. Edinboro' Academy v. Robinson, 1860, 1 Wr., 210. An action may be brought by a corporation to recover a subscription to a fund agreed to be raised and devot«d to a particular purpose by a number of persons who as- sociate themselves for the purpose of so raising the fund and, after organiza- tion, applying it to such purpose, when such corporation is the form of or- ganization adopted by the associates for carrying out the purpose, although the form of incorporation was not originally prescribed. In such case there is privity of contract between the subscriber and the corporation. See also Shober v. Lancaster County Park Association, 1871, 18 Sm., 429. Mnsselman v. East Brandywine &e. Eailroad Co., 1875, 2 W. N. C, 105, 6 Lane. B., 85. Evidence of attendant circumstances is admissible to show that a subscription to the stock of a corporation having no existence was in fact intended as a subscription to the stock of the corporation plaintiff. Bucher v. Dillsburg &c. Eailroad Co., 1874, 26 Sm., 306. Where a sub- scriber places his name upon a blank piece of paper, upon the agreement that it should not be attached to the " heading," being the articlesof association, until the latter had been submitted to him, the latter is not bound by his subscription if it is attached to the articles without his assent. Bobinson v. Pittsbgh. & Connellsville Eailroad Co. , 1858, 8 C. , 334. In decid- ing whether a memorandum added to a formal contract of subscription re- fers to that or a previous subscription the memorandum will be presumed to have been there when the subscription was made : afflrming 6 Pitts. L. J., 106. Formation of two CO]l>orations from one. — Indiana Turnpike Co. V. Phillips, 1830, 2 p. & W., 184. Where, under an act for the Incorporation of a company, commissioners are appointed and stock subscribed, a subse- quent legislative enactment forming the inchoate corporation into two dis- tinct corporations in lieu of the first and apportioning between them the stock subscribed, is unconstitutional, as impairing the obligation of a con- tract, and an original subscriber is not liable to one of the two corporations upon his contract of subscription. Power of directors to receive subscriptions.— Curry v. Scott, 1867, 4 Sm., 270. WTiere a corporation has been created with a defined capital, without the appointment of commissioners to receive subscriptions, and only part of the stock has been subscribed, the directors have power to receive subscriptions and issue certificates for the untaken stock, and purchasers of such stock become stockholders and entitled to equal rights with the origin • al stockholders ; a special act of Assembly is not necessary to confer such power or produce such result. Subscription received after of gauization without compliance with general act. — Erie Plank Eoad Co. V. Brown, 1855, 1 C, 156. Where a company is incorporated by a special act of Assembly, but the commissioners to receive subscriptions to its capital stock are appointed under the pro- visions of a general act, the special act providing, however, that the com- pany after its organization might receive new subscriptions in such manner and form as it should think proper, a subscription so received after organi- zation is not invalidated by the subscriber's failure to comply with the re- quirements of the general act. In such case those requirements do not apply to subscriptions received after organization. Validity of subscription made before whole amount of minimum capital has been subscribed. — Hanover Junction &c. Railroad Co. v. Haldeman, 1876, 1 Nor., 36. Where an act of incorporation estab- lishes a minimum capital, but provides that it may be disposed of in whole or in part from time to time as the directors may think proper and that the company shall be clothed vrith full corporate powers upon a sub- 356 SUBSCRIPTION. [Part I. scription of ten per cent, of the stock and payment of one dollar per share, the company may bring suit upon a subscription made before the whole amount of the minimum has been subscribed, where the conditions have been subsequently fulfilled and letters patent issued. Penalty for non-payment of instalments not a part of contract of subscription.— Custer V. Titusvllle Gas & Water Co., 1869, 13 Sm., 381. A provision in a charter that upon faUure to pay an instalment of stock when it is called for, the corporation may, after the expiration of thirty days from such demand and failure, add five per cent, per month to the instalment, is not a part of the contract of subscription, but is a penalty ; and a statute abolishing it, passed after a contract of subscription has been made, is not unconstitutional as impairing the obligation of that contract. Issue of certificates after corporation's assignment. — ^West Chester &c. Railroad Co. v. Thomas, 1857, 2 Phila., 344. The unpaid subscriptions to the stock of a corporation are subject to assignment, and pass under its as- signment for creditors of all its property, "real, personal and mixed," and " all claims and demands whatsoever." The fact that the assignee cannot issue certificates of payment is not a ground for refusing to permit him to receive the subscriptions. Upon such payment the certificates are issuable by the regular corporation officers. Evidence of subscription. — Phila. & West Chester Eailroad Co. v. Hick- man, 1857, 4 C, 318. The books of a corporation purporting to contain sub- scriptions to its stock are not of themselves evidence of such subscriptions. Where a party subscribes to stock on condition that others subscribe, it is im- plied in the contract that the conditional subscriber shall be chraged by any evidence which would be sufficient to charge the others in actions brought against them on their subscription. The acknowledgment of their signa- tures, although after action brought, is therefore sufficient. Weinman v. Wilkinsbnrg &c. Ewy. Co., 1888, 45 L. Int., 176. What U sufficient evidence upon which to submit to a jury the question whether a subscriber was released from his subscription and the defendant substituted as the subscriber. Transferee's signature of paper of character of subscription paper.— Citizens' & Miners' Savings Bank v. Gillespie, 1887, 19 W. N. C, 257. A transferee who signs a paper of the character of a subscription paper, ex- pressly agreeing to pay the amount subscribed as the directors may order, is liable as an original subscriber. Joint liability of subscribers.— Lawrence County's Appeal, 1870, 17 Sm., 87. The law will not imply any joint liability on the part of subscrib- ers to stock from the- mere circumstance that the parties subscribed to the same stock, under the same law and on the same terms. Measure of damages for breach of the contract. — Rhey r. Plank Road Co., 1856, 3 C, 261. The measure of damages for the breach of a contract of subscription is the difference between the value of the stock at the time of trial and the amount agreed to be paid for it. n. Tbe Rigrlit to Subscribe : Power of Corporation in Disposition of Stock. BUI by subscriber to compel issue of certificates— Collateral under- standing that stock should belong to other subscribers — ^Besponsive- ness— Evidence.— Rowley's Appeal, 1887, 5 Am., 150, 19 W. N. C, 280, 44 L. Int., 309. Where a subscriber to the stock of a corporation, stated to' be such in the certificate ot incorporation, is refused certificates for his shares Part 7.] SUBSCEIPTION. 357 upon the ground of a collateral understanding that he was to be regarded as a mere figurehead in the Incorporation and that the stock standing opposite liis name was to he virtually the property of other corporators ; and in an equity suit brought by him to compel the issue to him of such shares testi- fies that he subscribed for them ; and introduces in evidence the sworn cer- tificate of incorporation showing such subscription; an answer, acknowledg- ing that the complainant subscribed, but setting up in defence the alleged understanding, though responsive to the bill, is overcome by the corrobora- tion afibrded to the complainant's testimony by the certificate. Fraudulent attempt by commissioners to prevent subscriptions.— Comm. i>. McKean County Bank, 1858, 8 C, 185. Where a majority of com- missioners appointed by act of Assembly to organize a corporation enter into a fraudulent agreement with a citizen of another State to transfer the fran- chise to him, or to obtain for him a control of the majority of the capital stock, refusing to give to all who choose an equal opportunity to subscribe, the minority may separate from them and proceed with the organization as con- templated by the statute ; and the letters patent issued to them are valid. Corporation may compromise dispute respecting stock. — Berks & Dauphin Turnpike Co. v. Myers, 1820, 6 S. & E., 10. Although a corpora- tion cannot dispose of its stock in a manner different from that prescribed by its charter, it may compromise a dispute respecting stock previously sub- scribed. Bight to subscribe for untaken stock. — Reese v. The Bank, 1855, 7 C, 78. Unsubscribed stock belongs to the corporators and must be disposed of for the benefit of all. Where a resolution of the directors authorizes the issue of such stock to all the stockholders, one of the latter whose application is refused may maintain assumpsit against the directors. The latter have no power to limit the right of subscription to such of the holders as are not in arrear upon their original shares, where such arrearage accrued before the passage of the limiting resolution. Bank of Montgomery v. Reese, 1856, 2 C, 143. A corporation is liable in damages for refusing to permit a stockholder to subscribe for additional stock for which he is entitled to subscribe under resolutions of the directors. In such case, where the consideration has been paid, the measure of damages is the difference between the highest market value between the time of breach and the trial and the par value, together with the lonus and dividends which would have been received in the meantime. Wilson V. The Bank, 1857, 5 C, 537. A stockholder who is entitled to subscribe to additional stock authorized to be issued cannot maintain an ac- tion against the corporation for a refusal to permit him to subscribe where he never demanded or offered to subscribe. Curry v. Scott, 1867, 4 Sm., 270. A stockholder has no right to subscribe to untaken stock that is superior to that of one who is not a stockholder. Remedies— Mandamus— Action at law— Auction sale of stock.— Boyer v. Mutual Saving Fund, 1877, C. P., Schuylkill, 1 Schuylk, Leg. Eec, 231. Mandamus will not be awarded to compel a corporation to transfer or issue stock to one claiming to be entitled to it. Miners' Bank v. Water Co., C. P., Schuylkill, 2 Schuylk. Leg. Rec, 16. Where there is no provision in the charter of a corporation as to how untaken stock shall be issued or sold, the company may lawfully sell the same at auction. Where there is no increase of the capital stock, but merely a dis- posal of the original untaken stock, those who are already stockholders have no paramount right to demand a distribution of the stock among themselves. A stockholder claiming such a right h4s, U stems, no standing in equity. If he has any remedy, it is by an action on the case. Securities convertible into stock— Construction of special contracts. —Union Canal Co. v. Antillo, 1842, 4 W. & S., 553. A certificate of loan from a corporation construed convertible into stock by the holder before a certain date but redeemable at any time only by the corporation. 358 SUBSCRIPTION. IPart I. Brown v. Lehigh Coal & Navigation Co., 1865, 13 "Wr., 270. Construction of a special contract that scripholders of a corporation might on certain terms become shareholders. Muhlenbergt'. Phila. & Reading R. Co., 1864, 11 Wr., 16. Where the bond of a corporatioA is by its terms convertible into stock within a certain time, an agreement to extend the time for the payment of the bond does not carry with it the right of conversion into stock after the time originally limited therefor. III. Payment. Payment of prescribed amount as a condition precedent— Failure to pay. — Hibemia Turnpike Co. v. Henderson, 1822, 8 S. &E., 218. Where an act of Assembly directs commissioners for taking subscriptions to the stock of a proposed corporation to require the payment of a certain sum upon each share as a condition precedent to subscription, the commissioners have no power to permit a subscription without such a deposit ; such a contractof subscription is void, and the company cannot, after incorporation, recover the amount which ought to have been paid. See also Leighty v. Turnpike Co., 14 S. &R.. 133. Sinkler v. Turnpike Co., 1831, 3 P. & W., 149. Where by the terms of the charter subscribers are entitled to certificates only upon payment of a certain sum per share of the stock subscribed, such payment is a condition precedent to right of demanding the certificates, and tender of such certifi- cates is not necessary to support an action by the company upon the subscrip- tion, where the prescribed amount has not been paid. Grayble v. York & Gettysburg Turnpike Co., 1823, 10 S. & R., 268. The rule that a subscription to which an act of Assembly has made the payment of a certain sum per share of stock subscribed a condition precedent, is void ■nnless such payment is made, does not extend to the case of the commis- sioner himself. Same— Giving note for prescribed amount.— Boyd v. Peach Bottom Railway Co., 1879, 9 Nor., 169. Where an act of incorporation provides that no subscription to the stock of the corporation made previously to the issue of letters patent shall be valid unless the party making the same shall at the time pay five dollars on each share, the giving of a note for such amount is not a payment within the meaning of the law. A subscriber who has given such a note but has taken no part in the af- fairs of the company is not estopped from setting up the absence of such payment as a defence to an action for his subscription. Same— Subscription without payment may be validated.— Clark v. Monongahela Navigation Co., 1840, 10 Wts., 364. A stock subscription which is void by reason of the failure of the commissioners to require pay- ment of the prescribed instalment upon subscription, may be validated by a subsequent act of Assembly curing such defects. Payment in notes.— Comm. r. West Chester Railroad Co., 1855, 3 Gr., 200. It seems that a charter cannot be forfeited upon the ground that some of the subscribers to its stock gave notes therefor instead of cash as required by law. Same— Foreign corporation— AJidavit of defence.— Iowa Gulch Min- ing Co y. Work, 1883, C. P., 13 W. N. C, 47. In an action by a foreign corporation upon promissory notes given for its stock, an affidavit of defence setting forth statutes of the State by which the plaintiff was incorporated, and alleging that the stock in question was sold in a manner and for a price prohibited by such statutes, is sufficient. Payment in two acceptancea— Payment of one only .— Witte i^. Part J.] SUBSCRIPTION. 359 People's Passenger Railway Co., 1873, C. P., Schuylkill, 1 Leg. Chron. E., 252, 5 Leg. Opin., No. 19, 5 Leg. Gaz., 273. A subscriber to corporate stock gave in payment for the same two of his acceptances payable at different times, upon the agreement that if neither were paid, he should not receive the stock, and that if only one were paid he should receive only a ratable proportion of the stock. Seld that if he pay only one of the acceptances, he is not thereby entitled to a certificate for a ratable proportion ; he is enti- tled to that only after the maturity of the second acceptance. Credits to stockholder for proportion of purchase money of land.— Carr v. Le Fevre, 1856, 3 C, 413. Credits to a stockholder for his propor- tionate amount of the purchase money paid for lands properly purchased by the corporation for the prosecution of its business, are equivalent to payments made by him upon his stock under a regular assessement ; the corporation's over estimate of the value of the land cannot affect his liability. Payment in work and materials .—Reed v. Rank, 1884, C. P., Lebanon, 1 Lane. Law Rev., 393. A fully organized railroad company may sell stock to be paid for in work and materials. McClure v. People's Freight Railway Co., 1879, 9Nor., 269. In an action upon a subscription in which thtf covenant was to pay money upon call, the defendant cannot give evidence of an oral agreement that he might pay in materials and services, without offering to show that he attempted to ascer- tain upon the issuing of the calls, when and where he could furnish such material and services. Pittsburgh & Connellsville Railroad Co. v. Stewart, 1861, 5 Wr., 54. In an action by a corporation upon a contract of subscription, the defendant's payment of a certain amount of cash to the company, after a contract with the latter that he should pay for his stock in materials, does not estop him from setting up that special contract against the company's claim that he should pay the whole subscription in cash. Corporation's debt to subscriber. — Hogg's Appeal, 1878, 7 Nor., 195. Upon a sheriff's sale of the property and franchises of a corporation a cred- itor of the corporation cannot, in the auditor's distribution of the proceeds, have his claim against the corporation applied in payment of his indebted- ness upon subscriptions to the stock. Evidence to prove payments— Corporation book.— North America Building Association v. Sutton, 1860, 11 C. 463. An official corporation book containing entries of payments by a member is admissible, in an action by such member against the corporation for damages for a relusal to permit a transfer, to prove the payments made by the plaintiff upon his stock, not- withstanding that they contain evidence of payments by such member for other purposes. Such books are admissible without the production of the officer by whom such receipts were signed. IV. Fraud in Obtaining: Subscriptions. Addition of fictitious subscriptions by commissioners.— McConhay «. Centre & Kishacoquillas Turnpike Co., 1830, 1 P. & W., 426. The addition of fictitious subscriptions by the authorized commissioners is a fraud upon subscribers who are ignorant of the character of such subscriptions ; and such subscribers are not liable upon their subscriptions although they accept the charter, not knowing how it was obtained. Same— When subscriber is not relievedof liability.— Centre & Kish- acoquillas Turnpike Co. v. McConhay, 1827, 16 S. & R., 140. It is not a de- fence to an action by a corporation to recover the amount of a subscription, that the charter was obtained by means of fictitious subscriptions for part of 360 SPBSCEIPTION. [Pirt I. the stock, where the defendant should have known of the character of such subscriptions and he has by his own public acts accepted the charter and put it into operation. President's agreement that stock need not be paid for. — Eobinson v. Pittsbgh. & Connellsville Railroad Co., 1850, 8 C, 334. It is no defence to an action to recover the amount of a subscription, that it was made at the re- quest of the president of the corporation with the understanding that the subscriber was not to pay for or hold the stock, and that the same should be transferred to the company and cancelled. Such an agreement vrould be a fraud on the company and all subsequent subscribers : affirming 6 Pitts. L. J., 106. Custer V. Titusville Gas & Water Co., 1869, 13 Sm., 381. In an action by a corporation upon a contract of subscription an offer by the defendant to prove merely an agreement by the president of the corporation that a sub- scriber should not be called upon for payment of his subscription, cannot be received as evidence of such fraud upon bona fide subscribers as -would release them from liability upon their contract. Such an offer must, to be admissi- ble for that purpose, be merely a link in a chain of evidence to show a gen- eral scheme of fraud on the part of the company to procure worthless sub- scriptions in order to inveigle others. The law will not presume in such a case that the agreement of the president was authorized by the corporation. But it is error to reject an offer to show a release by the corporation. Defendant cannot set up fraud in his subscription. — Graff v. Pittsbgh. & Steuben ville Railroad Co., 1858, 7 C, 489. In an action by a corporation upon a contraeDalty for the non-pay- ment of which is forfeiture of the charter, the exaction of such forfeiture does not preclude the Commonwealth from recovering in an action the un- paid taxes. Settlement by Auditor G-eneral and State Treasurer under Act of March 30, 1811 — ^Liability for interest. — Comm. v. Easton Bank, 1849, 10 B., 442. The Auditor General and State Treasurer have jurisdiction under the Act of March 30,1811 to statean account between the Commonwealth and a corporation for unpaid taxes on dividends. In such a case the corporation is liable for interest at six per cent, from the expiration of three months from the date of the settlement. See also Comm. v. Kunk, 1856, 2 C, 235. Act of June 7, 1879— When State officers may settle account. — HamUton Wheel Co. v. Comm., 1882, 12 W. N. C, 328. If the sworn esti- mate and appraisement of the value of a corporation's stock returned by the corporate officers, under the Act of June 7, 1879, is not satisfactory to the accounting officers of the State, those officers may themselves settle an ac- count against the corporation. Conclusiveness of settlement— Appeal. — Comm. v. Pittsburgh & Con- nellsville Eailroad Co., 1872, C. P., Dauphin, 2 Pear., 389. The set- tlement by the State accounting department of the amount of taxes due the Commonwealth by acorporation is conclusive unless appealed from with- in the time prescribed by law. See also Comm. v. Beading & Wilmington EaUroad do., 1875, C. P., Dauphin, 2 Pear., 394. Notice of settlement under Act of Mar. 30, 1811.— Comm. v. Ennk, 1856, 2 C, 235. In a settlement made by the Auditor General and State Treasurer under the Act of March 30, 1811, of the taxes due bya corporation, it is not necessary that a preliminary notice of the time of settling the ac- count shall be given. Where the subsequent notice directed by the Act is given, and no appeal is taken, they must be taken to have been rightly im- posed. f^rt J-] TAXATION. 383 Settlement is a ministerial act.— Hamilton Wheel Co. v. Comm., 1882. 12 W. N. C, 328. The settlement of an account for taxes against a ccrpora- tion under the Act of June 7, 1879 is not a judicial, but a ministerial act, and it may be done by the corporation clerk in the Auditor General's Office. Philadelphia & Reading Eailroad C!o. v. Comm., 1883. 13 W. N. 0. 478 41 L. Int., 95. The settlement of the State tax upon corporations Imposed by the Act of June 7, 1879 (P. L., 112), upon the basis of a report made by the corporation to the Auditor General, is a ministerial act, and may be per- formed by clerks acting respectively under the direction and by the author- ity of the Auditor General and the State Treasurer. In an action of debt by the Commonwealth against a corporation for the amount of the tax so settled an afladavlt of defence averring that, inasmuch as the account was not set- tled by the accounting officers of the Commonwealth, the settlement exhib- ited no cause of action, is not sufficient. It must aver that the persons as- suming to make such settlement acted without authority from the account- ing officers. Corporation in hands of Federal receiver. — Philadelphia & Reading Railroad v. Comm., 1883, 8 Out., 80. The fact that a corporation is in the hands of receivers appointed by a Federal court does not release the corpor- ation from its liability to pay the tax on gross receipts provided for by the Act of June 7, 1879 ; nor render improper the statement oi an account for such tax against the corporation, rather than the receivers. Collection of taxes upon taxable corporation loans— Acts of April 29, 1844, June 7, 1879 and June 10, 1881— Local assessment etc.— Comm. V. Lehigh Valley Eailroad Co., 1883, 8 Out., 89. The Act of April 29, 1844 (P. L., 497) renders "all mortgages, money owing by solvent debt- ors " ete. subject to taxation, and requires the county commissioners of each county to assess such property in the hands of the creditors. The Act of June 7, 1879 (P. L., 112) and the supplementary Act of June 10, 1881 (P. L., 99) make such property taxable at a, different rate, and require that corp- orations paying interest on taxable loans shall deduct the tax from the in- terest and pay it into the State Treasury, but do not provide any method for the valuation and assessment of such bonds. Held : (1) That as the Acts of 1879 and 1881 contain no provision for assessment and valuation, since the required return by the corporation ot the amount of its indebtedness is not such, nor is the account settled by the Auditor Gen- eral against the corporation, the Acts of 1879 and 1881 cannot form an inde- pendent scheme for the taxation of corporate loans, but must be aided by the machinery provided by the Act of 1844 : (2) That in view of the fact that no means of assessment is provided by the Acts of 1879 and 1881, it is the duty of the local assessors to value and assess corporate bonds wherever found in the hands of resident owners ; and it must be presumed that these public officers performed that duty, and that the taxes are paid under such assessment ; and (3) That as the tax provided by the Acts of 1879 and 1881 is not a tax on the corporation in any sense, but upon its indebtedness in the hand of its creditors, the corporation can be charged only as a collector, and when the tax has been already paid under the local assessment, the corporation is dis- charged. Deduction of taxes from dividends — Acts of May 1, 1868 and April 24, 1874.— Catawissa Eailroad Company's Appeal, 1875, 28 Sm., 59. The 5th section of the Corporation Tax Act of May 1, 1868, requiring the taxes to be deducted from the dividends, is not repealed by the Act of April 24, 1874, section 4 : affirming 9 Fhila,. , 220, 31 L. Int., 356. Penalty for failure to make return. — Delaware Division Canal Co. t. Comm., 1865, 14 Wr., 399. Where, in answer to inquiry made by officers of a corporation, the Auditor General has decided that the company is not liable to certain taxation, the corporation does not incur the. penalty im- posed for neglect or refusal to make the necessary returns. 384 TAXATION — ^TIMBER. [Pari I. Western Union Telegraph Co.'s Appeal, 1884, C. T., Dauphin, 41 L. Int., 194. A corporation which fails to report as a dividend a distribution of in- creased stock does not thereby become liable to the penalty attached by the Act of June 7, 1879 to a refusal to make any report to the Auditor General. The corporation is not chargeable with interest until the time of settlement when no notice was given or demand made prior to that date. Statute providiiig for deduction of tax by corporation on paying in- terest to holders of securities— Corporation's standing to appeal.— Comm. V. Delaware Division Canal Co., 1888, C. P., Dauphin, 21 W. N. C, 537. Where a tax is imposed upon the evidences of corporate indebtedness and the corporation is required to deduct the tax upon paying the interest on the taxed securities, the corporation, though strictly not taxed itself, is more than a mere tax-collector, and may appeal from an assessment on the ground that the tax is unconstitutional. Act of June 30, 1885 — ^When tax was first collectable. — Comm. v. Lehigh Coal & Nav. Co., 1887, C. P., Dauphin, 20 W. N. C, 170. The Act of June 30, 1885 did not impose the three mill tax therein provided for as an additional tax for the period between .Tune 30, 1885 and November 1, 1885; but the tax was for the first time collectable for the year 1886. See al-so Comm. V. Dunbar Furnace Co., 1887, C. P., Dauphin, 20 W. N. C, 171 XELHGRAPH LIXE. Taxation of, see Taxation. Mechanics^ lien against, see Lien. TENANCY. iSiee Lease. Tenant as elaimanifor land damages, see Eminent Domain, IV, 1. XENDER. Of security by corporation entering on land under right of eminent domain, see Eminent Domain ; recovery by owner of less than amount tendered, as affecting costs, see Id., IV. 4, d. Of certificates; to siilscriber for stock, see Stock and Stockholders, VI, 3; wliere consideration of contract is payable in slock, see Contracts, V. TERmiNI. Location of, as affecting contract of subscription, see Subscription. TimBER. Cutting of, on another's land, see Trespass. ■P'"'' •^•] TITLE — TRESPASS. 385 TITLE. Of holders of corporate bonds, see Bonds. Of holders of stock, see Stock and Stockholders. To land taken under right of eminent domain, see Eminnt Domain. TOL,L,S. Illegal tolls, see Penalties. TORT. See Malicious Prosecution, Slander, Trespass. Refusal to permit transfer of slock, see Stock and Stockholders. Chestnut Hill Co. v. Rutter, 1818, 4 S. & R., 6. An action on the case lies against a corjioration for a tort : overruling Breckbill v. Turnpike Co., 3 Dall., 396. See also New York etc. Telegraph Co. v. Dry burg, 1860, 11 C, 298. Pennsylvania Railroad Co. v. Vandiver, 1862, 2 Wr., 365. A corporation is liable for the torts of its agents committed in the course of the business of the corporation which they are entrusted to perform. New York &c. Telegraph Co. v. Dryburg, 1860, 11 C, 298. A corporation may be sued in tort, in its corporate character, for damages arising from the neglect of its employes apiwinted without a seal. Lake Shore &c. R. Co. v. Rosenzweig, 1886, 3 Am., 519. A corporation is liable in punitive damages for a tort of its servant, done within the scope of his authority, under circumstances which would give such right to the plaintiff as against the servant, were the suit against him instead of the com- pany. TRA?ISFER OP STOCK. See Stock and Stockholders. TREASURER. See Officern. Attachment of money in hands of, see Attachment. TRESPASS. For corporation's unlawful entry on land, see Eminent Domain; by corporation against land oumer obstructing right of way, see Id. 25 — MUEPHY. 386 TRESPASS — TRIAL. iPorl 1. Trespass vi et armis— I^ecting with unnecessary violence.— Weiler V. Pennsylvania RaUroad Co., 1882, C. P., Allegheny, 29 Pitts. L. J., 347. An action of trespass m et armis cannot be maintained against a corporation for the use of unnecessary violence by its officers in ejecting an intruder fi-om its premises ; the remedy is against such officers individtially. Mesne profits.— McCready v. Guardians of The Poor, 1822, 9 S. & R., 94. Trover and trespass for mesne profits lie against a corporation. Mining coal on another's land— Limited partnership.— Oak Ridge Coal Co. V. Rogers, 1884, 16 W. N. C, 355. A limited partnership associa- tion organized under the Act of June 2, 1874 is so feir a "corporation " that it may be sued under the Act of May 8, 1876 for mining coal upon the lands of another. For cutting timber— Act of Mar. 29, 1824. Bethlehem South Gas & Water Co. v. Yoder, 1886, 2 Am., 136. The Timber Act of March 29, 1824, imposing double and treble damages for the wilful cutting of another's tim- ber, does not apply to the cutting of timber upon land taken by a corpora- tion under the right of eminent domain, even where the corporation's entry is a technical trespass. TRIAL. Of accused member, see Disfranchisement. Of facts warranting forfeiture of charier, see Charter, V. Member of corporation as juror— What interest disqualifies.— Res- publica V. Richards, 1795 1 T., 480,. Where a corporation is a party to an action, or immediately interested in the question in dispute — as where a prosecution for the fraudulent seduction into other territory of a negro, with the intent of selling him into slavery, is carried on by a society for abolish- ing slavery — no member of the corporation can be a juror. Relationship of juror to stockholder— Public list of stockholders- Constructive notice— New trial.— Irvine v. The Bank, 1858, D. C, Alle- gheny, 1 Crum., 422, 6 Pitts, L. J., 9. The fact that one of the jurors in a case wherein a corporation is a parly is a son of a stockholder in the corpor- ation, is sufficient ground for setting aside the verdict and granting a new trial, providing the party moving therefor had no knowledge of the rela^ tionship before the trial. The fact that the charter of the corporation re- quired it to exhibit publicly a list of its stockholders, with which the mov- ing party might have compared the list of jurors for the purpose of ascertain- ing relationship, does not amount to such constructive notice as would estop him from asking for anew trial. What questions are for the court and what for the jury— Adoption of contract by directors.— Insurance Bank V. Bank, of The United States, D. C, 4 Clark, 125, 7 P. L. J., 129. What acts are sufficient to constitute an adoption by a board of directors of a contract made by the stockholders, is a question of law. Same— Reasonableness of by-law.— Hibemia Fire Engine Co. v. Comm., 1880, 12 Nor., 264. Whether or not a by-law is reasonable, is a question for the court. But its unreasonableness must be demonstrably shown. Same— Whether note was given as that of corporation. — Fisher v. Rhodes, 1860, 4 Phila., 94, 17 L. Int., 228. The principle that when an agent discloses the name of his principal, he is not personally liable to the party with whom he deals, though he may give a note in his own name, ap- plies to transactions by officers of corporations. Whether such a note was given and received as the note of the company, is a question for the jury. Part J.] TRIAL — TEOVEE. 387 Same — Whether contract was made with plaintiff corporation- Misnomer.— llendel V. The Berks & Dauphin Turnpike Co., 1827, 16 S. & E., 91. Where a corporation brings suit in its proper corporate name upon a contract signed with a different name, the question whether the contract was made by the plaintiff and the variation in the corporate name was a mistake is for the jury. Same — Whether seal is that of defendant corporation. — Grossman v. Hilltown Turnpike Co., 1857, 3 Gr., 225. In an action of covenant against a corporation the seal upon the instrument on which suit is brought must be proved to be the seal of the corporation. A corporation may adopt the seal of another, or an ink impression, but such adoption must be proved. To this it is not necessary to show a resolution of the directors. Whether or not the seal is that of the defendant corporation is a question for the jury. Same— Whether affixing of seal was authorized.— Berks & Dauphin Turnpike Co. v. Myers, 1820, 6 S. & E. , 10. The affixing to a contract ofa corp- orate seal, which is a purely ministerial act, may be done by a number of man- agers less than the minimum w.ho, under the charter, may enter into the contract ; the seal itself is prima facie evidence that the contract has been duly entered into by the corporation, unless the authority to affix it is con- fined by the charter to a particular officer or member, and where there is no such restriction, the question of its authorization is for the jury. Same— Whether subscriber waived conditions. -Livingstone?). Pitts- burgh & Steubenville Eailroad Co., 1859, 2 Gr., 219. In an action by a corporation to recover instalments due on stock, in which the defendant al- leges a conditional subscription and that the condition was not fulfilled, the question whether or not he waived the condition and acknowledged the sub- scription as binding by continuing to act as stockholder after he had knowl- edge of the breach, may properly be submitted to the jury. Same— Whether whole of unpaid subscription is necessary to pay corporation's debts. — Citizens' & Miners' Savings Bank v. Gill^pie, 1887, 19 W. N. C, 257. In an action by the assignee of an insolvent corporation to recover the amount of unpaid subscriptions it may properly be left to the jury to find whether the whole of the unpaid subscription is necessary to pay the debts of the company, there being no evidence of an assessment. In such case there can be no recovery unless the whole subscription is neces- sary. See also Kennedy v. Gillespie, 1886, C. P., Lackawanna, 3 C. P., Eepr., 131. TROVER. McCready v. Guardians of The Poor, 1822, 9 S. & E., 94. Trover and tres- pass for mesne profits lie against a corporation. Barton v. WiUey, 1875, 2 W. N. C, 157. An officer of a corporation who unlawfully takes and converts goods to the use of the corporation, is person- ally liable therefor unless it be shown that his act was authorized by the corporation. 388 TKUST AND TRUSTEE. [Part I. XHrST AND XmJSXEE. Assignment in trust fw creditors, see Assignment, Dissolution: appointment of wincling^p trustee, see Id. Charter provision as to number of trustees for corporation, see Creation of Corpor- ations, III. Powers and liabilities of boards of trustees, see Directors. Constructive trusts, see Fraud, II; directors as fiduciaries, see Directors. Trustees of corporations as parties to suits, see Action and Suit; proof of incorp- oration in action brought by trustees, see Pleading. Land lield in trust for unincorporated association, see Creation of Corporations, IV. Trustee of corporation mortgage, see Mortgage. Beorganizalion trustee, see Reorganization. Attachment against corporation trustee.— North American Land Co.'s Estate, 1868, C. P., 1 Brewst., 533. An attachment cannot issue to compel payment by a corporation trustee. But execution wiU be awarded. Appeal hy corporation trustee from decree of Orphans' Court.— Nixon's Estate, 1880, O. C, 8 W. N. C, 390. A corporation acting in a fidu- ciary capacity and api)ealing as such in behalf of its cestui que trust from a de- cree of the orphans' court, is not within the purview of the Act of March 15. 1847 requiring bail in appeals by corporations to be for debt, interest and costs. It seems that that provision applies to suits against such bodies in their corporate character for liabilities incurred by them as corporations. Corporation's capacity to take legacy as trustee.— Philadelphia v. El- liott, 1831, 3 E., 170. A legacy left to a corporation with a direction to ap- ply it, not to the general purposes of the corporation, but to particular ob- jects within the scope of its corporate duties, is good, and the corporation has capacity to take it and act as trustee. Creation of trust by directors to bind future boards.— Ford v. The Ctoal C!o., 1868, 25 L. Int., 268. The courts will not control the discretion of directorsin declaring dividends. . The directors of a coal company have power to create a sinking fand out of their annual profits to secure the par value of the company's stock. But they cannot create a trust for the purpose of pre- venting the reversal or modification of such a policy by future boards of di- rectors. Reorganization trustee — Bill for contribution. — Fawcett v. Ball, 1879, 26 Pitts. L. J., 201. Where a number of the stockholders of an insolvent corporation pay the debts of the latter upon a compromise, purchase its as- sets at public sale and assign them to one of their number for a nominal consideration, the latter cannot maintaina bill for contribution, as a creditor, against the members who did not join in payment of the debts ; but he may maintain such a bill as trustee for the syndicate of stockholders who paid the debts. Trustee of stock— Liability for instalments. — Long v. Penn. Ins. Co., 1847, 6 B., 421. A person who takes a transfer of stock subject to the pay- ment of instalments due as trustee for an absent person is personally liable to the corporation for nnpaid instalments. Transfer of stock to successor in trust. — Lehigh Coal & Navigation Co.'s Appeal, 1879, 7 Nor., 499. A corporation cannot be compelled by a decree in equity to transfer stock to the successors in a trust without notice to the cesluis que trust and oyer of the documents upon which the complainants base their right. Part I-l TEUST AND TRUSTEE— ULTEA VIEES ACTS AND CONTRACTS. 389 Dry trust for unincorporated association— Bill to compel convey- ance. — Fourth Universalist Parish v. .Wensley, 1878, C. P., 5 W. N. C, 273. The fact that a trustee of a dry trust for an unincorporated association is in- dividually liahle as a member of such association for its debts cannot be urged as a defence to a bill to compel him to execute a conveyance of the trust property to such society alter its incorporation. Trustees, when not corporate officers within meaning of Act of March 31, 1860, Sec. 66.— Comm. v. Christian, 1872, 9 Phila., 556, 29 L. Int., 341. Trustees of an insurance company one of whom was its solicitor and the other its traveling agent, neither of w^hom was designated by the by-laws as an of&cer of the corporation, are not " officers " within the mean- ing of the 66th section of the Act of March 31, 1860. Damages to life tenancy by corporation's entry— Award— Trust for remainderman.— Passmore v. Phila., Wilmington & Baltimore E. Co., 1872, C. P., 9 Phila., 579, 4 Leg Gaz., 337. Damages to a tenancy for life inflicted by a corporation's entry under the right of eminent domain may be awarded directly to the tenant without the intervention of a trustee for the remain- derman. Trust ex maleficio — ^Fraud in obtaining dissolution— Bailey's Ap- peal, 1880, 15 Nor., 253. Where certain parties fraudulently represent that the entire stock and assets of a corporation belong to them, and there- by procure a decree of dissolution and acquire possession of the corporate property, they will be decreed trustees ex maZefido as respects bona fide stock- holders. Same— Fraudulent dividends— Impairment of capital.— Stang's Ap- peal, 1881, 10 W. N. C, 409. Stockholders who diminish the capital of a corporation by distribution among themselves, without first providing for the payment of all the corporation's debts, receive it impressed witk a trust in favor of the corporation's creditors, which trust is enforceable in equity. But a stockholder who has not shared in the distribution is not liable. Entry by corporation on lands held in public charitable trust.— Southwest Penna. Pipe Lines v. Directors of The Poor, 1886, C. P. , Washing- ton, 1 C. C. K., 460. A corporation having the power of eminent domain may enter upon lands held in trust for the employment and maintenance of the poor. Liquidating trustee — Taking stock in liquidation of debt due.— Pat- terson V. Lennig, 1887, C. P., 20 W. N. C, 141, 44 L. Int., 186. Where the stockholders of an insolvent corporation agree to surrender one-half of their stock, which has no market value, a part of the same to be re-sold to obtain a working capital and the rest to be used in liquidation of the company's debts, appointing as trustee for that purpose their president, who was one of the largest stockholders and the largest creditor, such trustee, after having liquidated all other indebtedness and tried unsuccessfully for four years to sell the balance, may lawfully liquidate the indebtedness due to himself by taking the stock at a price much above its value at the time. Affirmed : 21 W. N. C, 84. IJI^TRA VIKES ACTS A.7iTi CONTRACTS. See also Pvwers ana Rights of Corporations. What acts are ultra vires— In general. — Freeland «. Pennsylvania Central Insurance Co., 1880, 13 Wr., 504. A corporation contract is ultra Inres when it is beyond the powers conferred on the corporation ; a contract 390 ULTEA VIEES ACTS AND CONTEAOTS. [Part I. within such powers cannot be alleged to be uHra vires because the powers themselves are, according to the allegation, improperly conferred. Same— Act done through agent— Acquisition of land by foreign corporation. — Comm. v. New York, Lake Erie & Western K. Co., 1887, 19 W. N. C, 1, 44 L. Int., 178. A foreign corporation cannot purchase the charter of a Pennsylvania corporation through the intervention of an indi- vidual agent secretly acting on behalf of such loreign corporation and there- by obtain the control and practical ownership ot lands in Pennsylvania which it is not authorized to hold directly : and such lands are subject to escheat although the legal title to them is held by the Pennsylvania corpor- ation. Same — Act done as agent. — Philadelphia v. Western Union Telegraph Co., 1876, C. P., 2 W. N. C, 455, 11 Phila., 327, 33 L. Int., 129. A corpor- ation cannot justify an act which under its own charter is ultra mres by doing it jointly with another corporation possessing the power to do it, or by doing it as the agent of such corporation. Same— Contracts made in violation of charter provision as to form — Hazlett i>. Ins. Co., 1874, C. P., 1 W. N. C, 24. Where the charter of an insurance company provides that all contracts of insurance made by it shall be in writing or print, under the corporate seal, and signed by the president, a verbal contract of insurance by an officer of the company is ultra vires. See also Graham a. E. Co., 1874, C. P,, 1 W. N. C, 40; Hanson i. E. Co., Id., 7. Same — ^Discount of notes. — Bright v. The Banking Co., 1882, 3 Penny., 478. The discount of notes by a corporation authorized by statute to invest its capital in notes and to purchase and hold securities in payment of the debts due it, is not ultra vires. Same — Transfer of franchises — ^Forfeiture. — ^Wilmington & Eeading Eailroad Co. v. Berks County Eailroad Co., 1878, 6 W. N. C, 115. A trans- fer of corporate franchises in the nature of a forifeituie is ultra vires and can- not be enforced. Same — ^Acts done under charter provisions not authorized by general law. — Albright ». Lafayette Building Association, 1883, 6 Out., 411. Where the charter of a»corporation formed under a general law contains provisions not authorized by the latter, all acts done in pursuance of such provisions will be void, b'ut the corporation is not thereby deprived of the rights given by such act to corporations formed under it. Wilmington & Eeading E. Co. v. Berks County E. Co., 1878, 6 W. N. C, 115. A contract by a railroad company to complete its road and lease a part of it to another railroad company and pay the principal and interest of its first mortgage bonds when due, and that upon default etc., the other com- pany shall take possession of its road and operate it until the first company obtains a release of the mortgage from the portion of its road leased to the second etc., Jield to be ultra vires and void as providing for a forfeiture, if not absolute, so indefinite in character as not to be computable. See Feanchises. How far ultra vires contracts are binding.— McKay v. Seyfert, 1877, C. P., 34 L. Int., 248. Contracts not within the scope of the jwwers granted to a corporation are void. See PowEES of Cobpoeations. Insurance Bank v. Bank of The United States, 1847, D. C, 4 Clark, 125, 7 P. L. J. , 129. Where the stockholders of a corporation make an agree- ment which is not binding upon the corporation or is incompatible with its charter, effect will nevertheless be given to it if it is otherwise valid and there are no interests or rights to be affected thereby except those of the parties. Oil Creek &c. Eailroad Co. v. Pennsylvania Transportation Co., 1876, 2 Nor., 160. Where a contract has been executed on the part of a corporation, Port J.] ULTRA VIBES ACTS AND CONTRACTS. 391 the other contracting party when sued upon the contract for the mere money c^msideration cannot set up That the contract was ultra vires. See also Wright V. Pipe Line Co., 188:i, 5 Ont., 204. Jenkins Township v. Yatesville Borough, 1880, C. P., Luzerne, 9 Luz. Leg. Reg., 229. The fact that the purchase by a corporation of debts owing by a township may be ultra vires does not destroy the binding character of the debts. First National Bank of AUentown v. Hoch, 1879, 36 L. Int., 331. Where an ultra vires contract is made with a corporation through its officer, but the corporation has received no benefit from it and the other contracting party has not parted with anything of value under the contract, the latter party cannot recover upon the contract against the corporation, Hagerstown Bank v. Loudon Savings Fund Society, 1861, 3 Gr., 135. The ' binding effect of the act of a corporation's agent cannot be questioned, where the act was authorized by the board of directors, upon the ground that the act was ultra vires. Same — ^Ultra vires mortgage. — Phila. & Sunbury Railroad Co. V. Lewis, 1859, 9 C, 33. A corporation is liable upon its bonds, lawfully issued for an end within the purposes of itS creation, notwithstanding that the corpor- ation had no authority to execute the mortgages by which such bonds are secured. St. John's Church v. Steinmetz, 1852, 6 H., 273. A mortgage under a corporate seal cannot be rendered inadmissible in evidence on the ground that, the title of the corporation in the land in question being inalienable, it had no power to mortgage, and that therefore the mortgage is not its deed. Land held ultra vires passes under mortgage. — Youngman v. Elmira & WilliamsportR. Co., 1870, 15 Sm., 278. Land held by a corporation «Zer cent. , and then to rank with the common stock. Such a method of borrowing cannot be objected to on the ground that it is nsurions or that it is an issuing of deferred stock. See contra McCalmont v. Philadelphia & Beadins Kailroad Co 1881 U S. C. C, 10 W. N. C, 338. ' ' VAI^UE. Of land taken under right of eminent domain, see Eminent Domain, IV, 4. ^'"■^ ^-l VENUE — WAIVER. 393 Folsom V. Chester & Delaware Railroad Co., 1875, C. P., 1 W N C 201 The Act of April 28, 1870 (P. L., 1292), providing for a change of Venue in actions by or against corporations, is repealed by implication by the 7th and 23rd Sections ot Article III of the new Constitution. VER.OICX. Setting aside, see Trial. VIE^BV. For assessment of damages for land taken under corporation's right of eminent do- main, see Eminent Domain. Hoad view, see Boads aiid Highways. VI01,AXI0X OF CHARTER. See Charter, V. Injunction to restrain, see Injunction. VOTE. Presumption of, — Bank of Kentucky v. Schuylkill Bank, 1846, C. P., 1 Parsons, 180. The omission of a corporation to record its own doings cannot prejudice the rights of a party relying on an actual vote of the corporation. A corporate vote may be presumed from other acts though there is no proof of such vote on the corporate records. Affirmed by Supreme Court. See Elections. %eAGES. Mechanics' lien, see Liai. -WAIVER. Of condition of subscription etc., see Subscription. Of notice of calls for instalments of stock, see Notice. Of land damages, see Eminent Domain, IV, 4, i. 394 WAEEANTS — WOEK AND MATERIALS. [Part I. 'WARRAKXS. For interest, see Bonds. See Injunction. 'WAXER POIiVEB. Taking of, under right of eminent domain, see Eminent Domain. WAY. See Roads and Highways. Corporation's right of, see Eminent Domain. See Dissolution. W^ITNESS. Siee Evidence, Eminent Domain. Fees, see Costs. •WOVLU. AND niAXERIALS. Supplied to corporations : lien for, see lAea; stockholders' individual liability for, see Stock and Stockholders. PART II. MUNICIPAL COEPOEATIONS. ABATEMENT. Of nuisance ; power of mayor, see Officers. ABVTTITVO PROPERTY. See Streets, Assessment Etc. ACCEPTANCE. Of new powers, by municipalities, see Powers. Constitutionality of statutes tendering to municipalities the option of accepting their prmrisions, see Classification of Municipalities. ACCOUNT. Official account, see Officers. O'Donnell v. Philadelphia, 1869, C. P., 2 Brewst., 481, 7 Phila., 234, 26 L. Int., 37. A municipal council has power to authorize the mayor and other proper officer to bind the municipality by stating an account. (395) 396 ACTIOif AND SUIT. [Part II. ACTION AND SUIT. Actions for penalties for violations of ordinances, see Ordinances and By-laws. For injmies arising from the exercise of the right of eminent domain, see Eminent Domain. For injuries caused hy mobs, see Mobs and Biots. for injuries caused by negligence, see Negligence. See also Affldavits, Appeal, Appearance, Service. Actions against municipality— Where properly brought.— Lehigh County V. Kleckner, 1843, 5 W. & S., 181. A county can be sued only in the courts of the county itself. Oil City V. McAboy, 1873, 23 Sm., 349. Actions against municipal corpor- ations must be brought in the county where the defendant is located. See also Potts V. Pittsburgh, 1883, 14 W. N. C, 38, 31 Pitts. L. J., 221; Church V. Scranton, 1882, C. P., Luzerne, 2 Kulp, 515, 12 Luz. Leg. Reg., 400; Evans f. Wrightsville, 1870, C. P., Lancaster, 1 Lane. B., No. 37 ; Heckscher v. Philadelphia, 1887, 20 W. N. C, 52. Heckscher v. Philadelphia, 1887, 20 "W. N. C, 52. A municipal corpora- tion can be sued only in the county where it is situated whether the action be upon a contract or for a tort. See Skevicb. Same— Trespass quare clausum fregit.— Kams v. Pittsburgh, 1876, C. P., Westmoreland, 23 Pitts. L. J., 81. An action of trespass quare clausum fregit against a municipal corporation need not be brought in the county where the latter is situate. It is properly brought in the county where the land lies. Township may maintain suit. — Shronk v. Supervisors of Penn Town- ship, 1832, 3 R., 346. Although a township is not strictly a corporation, yet it is a, quasi corporation, and, as such, may maintain a suit. See also Willard v. Parker, 1 R., 450. Institution of suit without consent of municipality. — Philadelphia v. Strawbridge, 1877, C. P., 34 L. Int., 240. No one can institute or prosecute a suit in the name of a municipal corporation unless the proper municipal authorities authorize it or ratify the act after the suit is commenced. Same— Law officer cannot institute without municipal assent.— Philadelphia v. Trustees of the Gas Works, 1882, C. P., 12 W. N. C, 477, 15 Phila., 51, 38 L. Int., 450. Officers of municipal corporations can do no act for which authority is not expressly given or may be reasonably inferred in the ordinances of the municipality or the legislation of the Commonwealth. The City Solicitor of Philadelphia has no power to institute suits in the name of the City without its consent. Action on claim against county— Previous refusal by commission- ers. — Harrison v. Armstrong County, 1883, 3 Penny., 95. No action will lie against a county until the claim on which it is founded has been pre- sented to the commissioners and payment thereol relused. Action for iivjuries sustained through negligence— Previous demand. -Hughes V. Wilkesbarre, 1875, C. P., Luzerne, 4 Luz. Leg. Reg., 318. A previous demand is not necessary before bringing action against a munici- pality to recover for injuries sustained through the defendant's negligence. Action by contractor without approval of claim by controller.— Buckley v. Philadelphia, 1885, C. P., 42 L. Int., 257, 18 W. N. C, 53. A contractor with the City of Philadelphia may maintain an action against it without having obtained the approval of his claim by the Controller. Part II.} ACTION AND SUIT. 397 Action on warrant— City of tMrd class.— Lackawanna Valley Bank V. Scranton, 1879, C. P., Lackawanna, 1 Lack. Leg. Eee., 393. A warrant drawn upon the treasurer of a city of the third class by the mayor, counter- signed by the controller, is prima facie legal and binding, and a suit maybe maintained thereon. Same— Action of debt— Claim for supplying gas to city.— Scranton V. Hyde Park Gas Co., 1883, 6 Out., 382. An action of debt will lie upon a city warrant drawn by the mayor and countersigned by the controller upon the treasurer of a city of the third class, for the payment of the consideration of a contract between the city and a gas company for supplying gas to the city lamps, directed to be paid " for account of gas and water appropria- tion." Action by commissioners to use of county.— Glover v. Wilson, 1847, 6 B., 290. Where the obligees in the bond of a tax collector are the county commissioners, an action thereon against the sureties need not be in the corp- orate name, but may be brought in the name of the commissioners to the use of the county. Action against commissioners of county. — ^Wilson v. Commissioners of Huntingdon County, 1844, 7 W. &S., 197. A county must be sued in its corporate name ; it cannot be held in an action brought against "The Com- missioners of the County, ' ' etc. Suit by Fairmount Park Commissioners in name of City of PMla. — Philadelphia v. Germantown Passenger Railway Co., 1874, C. P., 10 Phila., 165, 31 L. Int., 380. The Fairmpunt Park Commission may maintain legal proceedings in the name of the City of Philadelphia in cases where it is expressly given by law or ordinance or where it is necessarily implied in the nature of the powers conferred or duties imposed on the Commission. Action where one municipality has been merged with another.— Wood V. Philadelphia, 1856, 3 C, 502. Where a municipal corporation plaintiff has been merged into another municipal corporation, and suit is brought in the names of both, the record may be amended by striking out the old name. Action by borough against tax collector.— Wilson v. Borough of Lew- istown. 1841, 1 W. &S., 428. An action may be maintained by a borough .igainst a collector of a school tax to recover the amount of a duplicate placed in his hands for collection. Quantum meruit— Expense of county bridge.— Lehigh County v. Kleckner, 1843, 5 W. & S., 181. A county is not liable on a quantum meruit for the expenses incurred in the erection of a county bridge. See also Hague c: Philadelphia, 1864, 12 Wr., 527. Assumpsit— Services of officers in criminal proceedings.— Lancaster County V. Brinthall, 1857, 5 C, 38. The law implies a promise on the part of a county to pay for services rendered to it by officers in criminal proceed- ings, and assumpsit will lie npon such a claim. Suit upon assigned claims against municipality.— Lackawanna Val- ley Bank V. Scranton, 1879, C. P., Lackawanna, 1 Lack. Leg. Eec, 393. City warrants may be transferred validly by indorsement. Where they are so indorsed, a suit upon them is properly brought in the name of the payee to the use of the indorsee. Philadelphia v. Lockhardt, 1873, 23 Sm., 211. An executory contract for the payment of money by a municipal corporation may be assigned so as to pass an equitable right of action to the assignee. But a municipal corpora- tion is not bound to recognize a partial assignment of a claim against it. See also Philadelphia's Appeal, 1878, 3 Nor., 179; Geist's Appeal, 1883, 8 Out., 351. Misjoinder of counts— Appropriation of highway for railroad— Re- construction— Negligence— Damage for injuries. -Aston?!. Chester Creek E. Co., 1883, C. P., Delaware, 2 Del. Co., 9. Although it is the duty of a 398 ACTION AND SUIT — AID TO PRIVATE COEPOBATIONS. [_Part II- municipality one of whose highways has been appropriated by a railroad company to provide a safely reconstructed road to take its place, such doty being neglected by the railroad company ; yet when the municipality fails to do so, and is in consequence of such failure compelled to pay damages for injuries incurred through such negligence, it may recover the amount of such damages from the company. But in such an action against the company the plaintiflf should not join a count in assumpsit with a count in case. Equity— Markets in streets— Remedy. — Deneheyr. Harrisburg, 1878, c. P., Dauphin, 2 Pear., 330. Wherethestreetsof amunicipalityareheldin trust lor the public, the council has power to rent out a portion of them for tem- porary markets. If the public be incommoded, the remedy is by indictment or bill in equity at the suit of the Attorney General. But a private citizen has no standing in a court of equity. ACTS OP ASSEMBLY. See Statutes. ADVERSE POSSESSIOIV. AFFIDAVIX. On appeal from award, see Appeal. Of defence. — Garrard r. Allegheny, 1862, D. C, Alleghenv, 2 Crum., 3.38, 10 Pitts. L. J., 57. By the 8th section of the Aet of April 21, 1858 (P. L., 387) all municipal corporations were relieved of the necessity of filing in any case an affidavit of defence. The provisions of that section apply to aU municipalities ; not to Philadelphia alone. AGETiTS. See Officers and Agents. For sale of municipal bonds, see Debts and Bonds. Service on, see Service, Appearance. AID TO PRIVAXE CORPORATIOI«S. See Subscriptions Etc. Appropriatimis to private corporations, see Private Corporations Etc.. I. Part II.'] ALMSHOUSE — APPEAL. 399 AI«I»ISHOtJSE. Supplies for Philadelphia, see ConiraeU. AMENDMENT. In action or suit, see Action and Suit. Of municipal charier, boundaries etc., see Incorporation Etc. AMOTION. See Officers, Councils. AMUSEMENT. Licensing places of , see Assessment and Taxation. ANIMAI.S. Slaughter houses, see Ordinances and By-laws. Conier v. Whitney, 1874, C. P., 9 Phila., 184. A mnnicipal ordinance di- recting the taking up of horses found at large in the streets and their sale after due notice of the time and place thereof by advertisement, is valid. ANNEXATION. See Incorporation Etc. APPEAL. From assessment of damages, see Eminent Domain. From judgment of justice— Act of May 2, 1868.— Frackville v. HefF- ner, 1880, C. P., Schuylkill, 1 Schuylk. Leg. Rec, 250. The proviso of the first section of the Act of May 2, 1868, relating to appeals and transcripts from the judgments of justices of the peace etc., does not apply to munici- pal corporations. Prom award— Payment of costs— Security.— Eobinson v. JeflFerson County, 1843, 6 W. & S., 16. A municipal corporation may appeal from an award of arbitrators without payment of costs. See also Pottsville v. Curry, 1859, 8 C, 443 ; Chester v. Wheaton, 1880, C. P., Delaware, 1 Del. Co., 3. 400 APPEAL — APPEOVAL. [Part //. Rose V. Lancaster, 1873, C. P., Lancaster, 5 Lane. B., No. 2, 5 Leg. Opin., 48. A municipal corporation may appeal from an award of arbitrators with- out paying costs and without entering bail for costs. King V. Penn District, 1852, C. P., 1 Phila., 402. A municipal corporation may appeal without giving seenrity. The Act of March 22, 1817 does not include municipal corporations and by the Act of 1847 they are expressly excepted. . .... , Same — ^AfB.davit on appeal. — Monaghan v. Philadelphia, 1857, 4 C, 207. A municipal corporation cannot appeal from an award of arbitrators without making, through an agent or attorney, the usual affidavit that the appeal is not entered for delay. Watson V. Chester, 1871, 2 Del. Co., 382. An appeal by a municipal corp- oration from an award of arbitrators must be accompanied by an affidavit that it is not taken for delay. But it seems that the affidavit-need not be in writing, nor attested by the officer before whom it was made. APPEARABICE. Heckscher v. Philadelphia, 1887, 20 W. N. C, 52. Where an action against a municipality is erroneously brought in a county other than that where the municipality is situate, and service is made on a municipal agent in such other county and also upon the municipal officers in the proper county, an appearance for the defendant pending a rule to set aside the serv- ice and quash the writ does not cure or waive the defective service. APPOINTMENT. Of officers, see Officers. APPROPRIATION . Of property, under poiver of eminent domain, nee Eminent Domain, Private Cor/i- orntions in their Relations with Municipalitiex. Of money : see, in general, Contracts; to private corporations, s(e Private Corp- orations Etc., I; to payment of bonds notwithstanding premovs appropriation otherwise, see Debts and Bonds. APPROVAL. Of ordinances, see Ordinances. Of claims against municipality, by controller, see Contracts. Of petition for incorporation of borough, see Incorporation Etc. Of contract entered into by officer, see Contracts, //., Negligent performance of contract entered into uiithout approval of council, see Negligence. Part II.] AUBITKATIOX— ASSESSMENT, TAXATION, LICENSE. 401 ARBIXRAXIOX. See Appeal. ARMORV. Pittsburgh v. Biggert, 1877, 5 W. N. C, 281. It is the duty of the cities and counties of the State, under Section 64 of the Act ot May 4, 1864 yV. L., ■221) to provide an armory for the militia within their limits, for the rent of which the cities arid counties are entitled to be indemnified out of the bri- gade fund. Where the police committee of a municipal council rented cer- tain premises for an armory under the Act without authority to bind the city and without a ratification of the act by the city, it was held that the latter was liable to the lessor in an action for use and occupation. ARRESX. For violation of municipal ordinance, see Ordinances and By-laws. ASSESSniEP^T, TAXATION! AKD LICENSE. I. THE GENERAL POWER OF MUNICIPAL TAXATION: THE DUTY TO LEVY TAXES ETC. II. MUNICIPAL LICENSES. III. THE POWER TO LEVY ASSESSMENTS FOR LOCAL IMPROVE- MENTS. IV. MISCELLANEOUS. Actions against tax collectors, sureties upon-tax collectors' bonds etc., see Action and Suit. Constitutionality of statutes regulating mode of collecting taxes, see Classification of Municipalities. Mandamus to compel levy of tax to pay municipal obligations, see Debts and Bonds, Subscription etc. Assessment of damages for property t aken under the power of eminent domain, change of grade of streets etc. , see Eminent Domain. Elections for or against taxes, see Elections. I. Tbe General Po^irer of municipal Taxation : Tlie Duty to L,eTy Xaxes Etc: Delegation of power to municipality.— Butler's Appeal, 1873, 23 Sm., 448. The power of taxation may be delegated to municipal corporations to be exercised within their corporate limits. 26 — MURPHY. 402 ASSESSMENT, TAXATION, LICENSE [Part II. Jurisdiction — Territorial limits— Low-water mark. — Gilchrist's Ap- peal, 1885, 13 Out. 600. The limit of a municipality bounded by a non- tidal navigable stream, unless express language to the contrary is used in the act of incorporation, is at low- water mark. The jurisdiction of the taxing power of a municipality so bounded does not extend beyond the low-water mark. Power must be clear etc. — Delaware & Hudson Canal Co. v. Walker, 1873, Q. S. Luzerne, 2 Luz. Leg. Reg. 127. The authority of municipal corporations to levy taxes must be clearly given and strictly pursued. Taxation for general purposes— Application of taxes by ordinance. — Styles V. Jones, 1803, 3 Y. 491. Where the charter of a municipality empowers it to raise money by taxation for a general purpose, the corpora- tion may levy a tax and determine the particular application of the money by ordinance. Poll tax. — Hoeflick v. Snyder, 1828, 2 R. 125. A municipal corporation which is given, by statute, a general power to tax tor municipal purposes may, for such purposes, lawfully impose a poll tax. Tax for repair of streets. — Chess v. Birmingham, 1857, 1 Gr. 438. The Legislature may constitutionally authorize a municipal corporation to levy a tax to keep its streets in repair. Taxation of rural property — Defence. — Kelly v. Pittsburgh, 1878, 4 Nor. 170. Municipal taxation will not be held unconstitutional as to rural property on the ground that the latter can derive no benefit or protection from any of the municipal departments. See also Hewitt's Appeal, 1879, 7 Nor. 55. Act of June 4, 1859— Pittsburgh— Essential property of railway companies.— Penna. R. Co. V. Pittsburgh, 1883, 8 Out. 522. Under the Act of June 4, 1S59 (P. L. 828), entitled "An act to enable the city of Pittsburgh to raise additional revenue," the land, bnildings and improve- ment situated in Pittsburgh belonging to railroad companies are liable to taxation for city purposes notwithstanding that such property is essential to the companies' exercise of their corporate franchises. Similar property of city passenger railway companies in Pittsburgh is also taxable under said act. Tax for portion of expense of changing proposed location of rail- road.— McDermond V. Kennedy, 1839, 3 Clark, 490, 6 P. L. J. 66. Where the charter of a municipal corporation grants no greater power than author- ity to the council to make such by-laws as may be "necessary to promote the peace, good order, benefit and advantages of said corporation." particu- larly specifying the regulation of markets, streets, cellars and foundations of buildings etc. , and taxation for the purpose of carrying such by-laws into effect, the corporation possesses no power to levy a tax for the payment of a portion of the expense of changing the proposed location of a railroad so as to bring it nearer to the town. Act of May 18, 1875— Property not taxable for both State and county purposes.— Banger's Appeal, 1885, 13 Out. 79. Under the Act of May 18, 1875, a city of the third class may levy a tax upon property which is not taxable for both State and county purposes. Taxation beyond legal limit— Injunction.— Mathews v. Scranton, 1878, C. P. Luzerne, 7 Luz. Leg. Reg. 127. The officers of a municipal corpora- tion will be enjoined at the instance of a citizen and taxpayer from assess- ing and levying a tax beyond the limit fixed by law and from increasing the municipal indebtedness beyond that limit. Limitation in charter— Taxation for extinguishment of debt in ad- dition to other taxes.— Wilkesbarre's Appeal. 1887, 1 Crura. 246. 19 W. N. C. 408. A municipality in levying taxes*for the gradual extinguishment of its debt, under the provisions of the Constitution of 1874, and the Acts of April 20, 1874, May 23, 1874, and March 3, 1877, is not restricted to a limit Part 7/.] ASSESSMENT, TAXATION, LICENSE. 403 of taxation prescribed by its charter. Sach a tax may be leyied in addition to the other taxes. And it is not limited to municipal indebtedness out- standing at the time of the adoption of the Constitution of 1874. Article IZ, Section 10, of Constitution. — Lehigh Coal & Navigation Co.'s Appeal, 1886, 2 Am. 360. Article IX, Section 10, of the Constitution does not apply to the incidental and ordinary expenses of making and re- pairing township roads. Act of May 23, 1874, Sec. 20, 1st and 33d clauses— Cities of third class — Payment of loans etc. — Scranton v. Delaware, Lackawanna & Western E. Co., 1885, C. P. Lackawanna, 2 C. P. Eepr. 1. The 33d clause of section 20 of the Act of May 23, 1874, authorizing cities of the third class to assess and collect taxes "for the payment of loans to support the govern- ment and make the necessary improvements in the city," was intended to give an additional power of taxation beyond that contained in the first clause of said section ; and such power is confined to the one object of the payment of loans which have been made to support the government and make the necessary improvements. A tax cannot be levied under said sec- tion " for the payment of loans and making necessary improvements." Af- firmed : Id. 29. Limitation on taxing power not a prohibition of contracting debts. — Emerson v. Blairsville, 1859, 2 Crum. 39, 7 Pitts. L. J. 75. A limitation on the taxing power of a municipality is not equivalent to a prohibition to contract debts ; and the creation of a debt will not be restrained by injunc- tion, although amounting to more than the municipality can lawfully raise by taxation at one time. Election for or against taxes— Acts of May 1, 1876, and April 16, 1875.— Barrett's Appeal, 1887, 19 W. N. C. 519, 1 Crum. 486. The Act of May 1, 1876, purporting to be a supplement to the Act of April 16, 1875, prescribing the character of ballots to be cast at municipal elections for or against gas, water and similar taxes, is unconstitutional, in that it refers onlv in its title to the act to be amended. An election held in accordance with the provisions of the Act of 1876, instead of the Act of 1875, is there- fore void. Act of March 18, 1875— Exception of non-accepting cities.— City of Scranton School District's Appeal, 1886, 3 Am. 176. An Act of Assembly, e. g., the Act of March 18, 1875 (P. L. 15), containing a proviso excepting froni its operation cities which do not accept its provisions, is in contraven- tion of Article III, Section 7, of the State Constitution, and therefore void. See also Comm. v. Halstead, 1886, 43 L. Int. 488. Refunding taxes— Act of 1874, Sec. 38.— Stevens ■;;. Scranton, 1886, C. P. Lackawanna, 3 Lane. Law. Eev. 393, 3 C. P. E. 149. A city of the third class has no power to refund part of a tax collected by it. All acts done in pursuance of an attempt to exercise such a power are void. It cannot so re- fund taxes under the authority conferred in section 38 of the Act of 1874 to '■ exonerate taxes for sufScient cause." Constitutional limit— Taxability— Municipal oficers need not look behind assessment.— Brown's Appeal, 1886, 17 W. N. C. 42. The officers of a municipality are not bound to look behind an assessment duly made upon property within the limits of the municipality, for the purpose of de- termining the taxability of certain articles included in such assessment and the consequent constitutionality or unconstitutionality of a proposed in- crease of the municipal indebtedness. Municipal taxation of national banks.— Pittsburgh v. First National Bank of Pittsburgh, 1867, 5 Sm. 45. A national bank cannot be taxed for municipal purposes. See also Scranton v. First National Bank, 11 infra. Hanover v. The Commissioners, 1880, C. P. York, 1 York Leg. Eec. 25 The proper mode of assessing bank stock for municipal taxation is that specially provided by statute ; not by the local assessors. 404 ASSESSMENT, TAXATION, LICENSE. [Part IT.- Duty to levy tax, when implied. — Comm. v. Pittsburgh, 1859, lo c. 496. A municipal corporation's power to levy taxes for a certain purpose implies and imposes upon the corporation the duty of levying such tax when the contemplated obligations have been incurred. See also Debts and Bonds. Same— Non-repair of street— Negligence.— Erie CSty v. Schwingle. 1853, 10 H. 384. A municipal corporation cannot allege as an excuse of its non-performance of the duty to keep its streets in repair its failure to pro- vide the tax necessary for that purpose. Same — Mandamus to compel levy of tax. — Comm. v. Commissioners of Allegheny County, 1858, 8 C. 218. Mandamus will lie against a county to enforce the imposition of a county tax for the payment of the liabilities of the county. See also Comm. v. Pittsburgh, 1859, 10 C. 496 ; Comm. v. Commissioners of Allegheny, 1860, 1 Wr. 237. Comm. V. Pittsburgh, 1878, 7 Nor. 66. Mandamus is the proper remedy by which to compel the authorities of a municipality to assess and levy a tax to provide for the payment of the interest upon its bonds : Seversing 25 Pitts. L. J. 133. See further, as to bonds issued in aid of private corpora- tions, SUBSOEIPTION. Same— When mandamus will not He. — Comm. v. Mifflintown, j.870, C. P., 2 Leg. Gaz. 75. A mandamtis to compel a municipality to levy and col- lect a tax to pay a judgment against the municipality will not lie where a special statutory remedy has been provided. Same— Obedience to writ not discretionary. — Comm. v. Taylor, 1860, 12 C. 263. Municipal legislators have no' discretion in obeying a writ of mandamus directing them to provide for the payment of the corporate lia- bilities ; the judgment will be enforced by attachment. II. municipal Licenses. License to run omnibuses on streets, see Ordinances, Streets. Occupations — " Places of business and amusement " — FoHce power. — Durach's Appeal, 1870, 12 Sm. 491. The Legislature may constitution- ally authorize a municipality to levy, for the maintenance of a police force, a tax upon a certain class of persons within the municipality, e. g., liquor dealers. See also Butler's Appeal, 1873, 23 Sm. 448., Gettysburg v. Zeigler, 1886, C. P. Adams', 2 C. C. E. 326. The power to exact a license fee for occupations can be exercised only when expressly con- ferred by the Legislature. Warren v. Geer, 1886, C. P. Warren, 1 C. C. E. 647. An ordinance which contravenes a common law right, e. g., requiring book peddlers to obtain a license and pay a fee therefor, is invalid unless the power to ordain it is plainly conferred. Beversed : 20 W. N. C. 157. Eeets V. Wilkesbarre, 1874, C. P. Luzerne, 3 Lnz. Leg. Eeg. 115. A statute giving to a municipality power to require a license for specified busi- nesses " and also all other places of business and amusement conducted for profit," does not empower the municipality to require a license for any busi- ness except those of a character similar to that of the ones specified. Oarbondale, Mayor of, v. Vail, 1885, C. P. Lackawanna, 2 C. P. Eepr. 162, 2 Del. Co. E. 387. Under legislative authority to make such laws and ordinances "as shall be necessary or convenient for the government and welfare of the city," a municipality cannot impose a tax or the payment of a license fee mpon a place of amusement, nor can such a tax he supported as an exercise of police power. National banks. — Scrantonr. First National Bank, ]i^), C. P. Lacka- Part 1I.'\ ASSESSMENT, TAXATION, LICENSE. 405 ■wanna, 4 Luz. L. T., ]Sf. S. 2. A municipal license tax against national banks is void. National banks can be taxed by the State only in the mode allowed by an Act of Congress. See also Pittsburgh v. First National Bank, 1, supra. Telegraph poles. — Philadelphia 1!. Telegraph Co., 1886, C. P., 43 L. Int. 150. A license fee for telegraph poles erected in the streets of a municipal- ity may not be imposed by the latter as a tax, but may be imposed in the exercise of police power. A fee of live dollars is not excessive in Philadelphia. "While such a lee must be reasonable, its amount is not to be determined merely by the cost of supervision ; regard may be had to the municipality's responsibility for injuries which might result from the erection of unsafe poles. See also PhUa. V. Western Union Telegraph Co.. 1876, C. P., 33 L. Int. 129, 2 W. N. 0. 455. Vehicles.— Pittsburgh v. Craft, 1853, C. P. Allegheny, 1 Crum. 77. An ordinance requiring a license for owners of carriages, including non-resident owners who carry on business within the city limits, includes a uon-re.sident professional man who drives into the city daily to attend to his professional duties. Bennett v. Birmingham, 1854, 7 C. 15. An Act of Assembly authorizing a municipal corporation to ii"pose the payment of a license upon all owners of vehicles using the paved streets of the municipality does not empower the municipality to impose the payment of such a license upon vehicles passing through such streets but owned by non-residents. Same — Street cars. — Federal Street & Pleasant Valley Rwy. Co. v. Al- legheny, 1883, 31 Pitts. L. J. 259. An ordinary municipal tax on vehicles does not include street passenger cars. Railway Co. v. Phila., 1867, 6 Phila. 238. The imposition of a license tax upon street railway cars is a valid exercise of municipal police power. In Philadelphia further authority for such a tax is found in the Act of April 15, 1850, expressly granting to the city councils authority to regulate omni- buses or vehicles in the nature thereof. A tax of fifty dollars is reasonable. Johnson v. Philadelphia, 1869, 10 Sm. 445. A municipal ordinance im- posing, a license tax upon street railway cars is a police regulation, al- though its incidental effect is to increase the city's revenues. As such it is reasonable, and not invalid on constitutional grounds when imposed upon corporations which have previously acquired their right to lay tracks and operate their roads. As to increase of car licenses, see Union Ewy. Co. v. Phila., infra. Wharfage.— Elizabeth V. The Geneva, 1886, D. C. W. S., E. D. Penna., 3 Lane. Law Rev. 134, 22 Am. Law Reg., N. S., 584. Without clear legis- lative authority a municipal corporation has no power to construct a wharf at the end of a public street and charge wharfage for its use, unless such corporation be the riparian proprietor. SubsecLuent change of terms of license— Constitutional law.— Acad- emy of Music w. Jones, C. P. Lackawanna, 3 Luz. Law. T., N. S., 193. A municipality cannot validly pass an ordinance which virtually alters the terras of its own contract in its own favor, e. g., where it has passed an ordi- nance fixing an annual license, and afterwards passes an ordinance fixing a license for the same privilege at difi"erent terms. One who takes out his license under the original ordinance is bound by it alone until the expira- tion of the term for which he took it out. Union Passenger Ewy. Co u. Phila., 1880, U. S. S. C, 8 W. N. C. 377. Where at the date of the incorporation of a street railway company an ex- isting municipal ordinance fixes the license fee fo» each car run by such companies at thirty dollars, a provision in the incorporating act that the company shall pay such a fee for each car run "as is now paid " by other such companies, is not a contract that the fee shall not in the future be in- 406 ASSESSMENT, TAXATION, LICENSE. [Part II. creased. It is at most a contract that the company shall not then be re- quired to pay more than other companies and, perhaps, that invidious dis- tinction shall not thereafter be made against it. But even were it such a contract, a subsequent statute increasing the fee •would be warranted by the provision of the State Constitution, existing at the date of the company's incorporation, that all charters thereafter granted should be subject to alteration by the Legislature. Insurance companies— Acts of April 4, 1873, and May 24, 1887— Constitutional law.— ^tna Fire Ins. Co. v. Reading, 1888, 21 W. N. C. 209. The Act of April 4, 1873, sec. 17, providing that it should not be law- ful for any municipality to impose any license fee or tax on insurance com- panies, was repealed by the Act of May 24, 1887, providing inter alia that cities of the fourth, fifth, sixth and seventh classes shall have power to levy and collect for general revenue purposes an annual license tax on insurance companies. The Act of 1873 was not such a contract between the State and foreign in- surance companies accepting its provisions'as would prevent the State from taxing it in the future through municipalities. III. Xlie Poorer to I^evy Assessments for L,ocal Im- proTements. As to defences by owners of abutting property on the ground that the work was de- fectively done etc., see Contracts. Municipal assessments not taxes— Restrictions.— Northern Liberties r. St. John's Church, 1850, 1 H. 103. Municipal assessments for grading, curbing etc., are not taxes, and therefore, their imposition is not subject to the same restrictions as govern the imposition of taxes. See also Longmore V. Tiernan, 1867, D. C. Allegheny, 3 Crum. 62, 14 Pitts. L. J. 541. When municipality is not restricted to taxation in providing for improvement. — Greensburg v. Young, 1866, 3 Sm. 280. A borough au- thorized by its charter to make ordinances for the improvement and repair of its streets, " and also " to impose taxes for such purpose, is not restricted by the terms of its authority to taxation as the sole means of providing for such improvement and repair. It may require the lot owners to bear the expense of paving, curbing etc., the sections opposite their lots. Such an ordinance is not unreasonable. Power must be given and legally exercised.— Hershberger v. Pitts- burgh, 1887, 5 Am. 78. A municipality can create a valid lieu for improv- ing a street only in pursuance of law and when the power conferred has been legally exercised. Ordinance must strictly follow authorizing statute.— White r. Comm., 1880, 37 L. Int. 354. A statute authorizing a borough to grade and pave streets and make assessments for the cost, must be strictly pursued. Where the statute provides that the work shall be done within such reason- able time as the borough shall by ordinance direct, an ordinance omitting to specify any time is fatally defective. Constitutionality-y-Frontage valuation rule— Local and general benefit — Rural districts. — Legislation which directs municipal improve- ments and the assessment of the cost against those benefited by such im- provements is constitutional. The fact that general public benefit may in- cidentally result, does not make such assessment unconstitutional Mc- Masters v. Comm., 3 Wts. 292 ; Hancock Street, 6 H. 26 ; Schenley v. Alle- gheny, 1 C. 128 ; Stroud v. Philadelphia, 11 Sm. 255 ; Allentown v. Henry, Part II.'] ASSESSMENT, TAXATION, LICENSE. 407 23 Sm. 404 ; Huidekoper v. Meadville, 3 "W. N. C. 469 ; Schall v. Norris- town, C. P. Montgomery, 3 Luz. Leg. Eeg. 77, 6 Leg. Gaz. 157. Shoemaker v. Harrisburg, 1887, C. P., 4 Lane. L. Eev. 333. The Act of May 24, 1887, in providing for the pOwer of councils to pave streets and charge the cost on owners of abutting lots, is not in conflict with Article III, Sec. 6, of the State Constitution ; nor with Article III, Sec. 3. Assessments by the foot frontage on the streets improved do not violate Article IX, Sec. 1, of the State Constitution, providing for uniformity in taxation. But such assessment is unconstitutional where the improvement is of purely public benefit. Where a street has once been paved at the expense of the owners of the abutting lots, the cost of repaving it in a more expen- sive manner "' for the uses and purposes of the public " cannot be assessed upon such owners. And the frontage rule of valuation therefore cannot be constitutionally applied to streets in the rural portions of the municipali- ties. Hammett v. Philadelphia, 1870, 15 Sm. 146 ; Washington Avenue. 1871, 19 Sm. 352 ; Eeed v. Erie, 1876, 29 Sm. 346 ; Wister v. Phila., 1876, 30 Sm. 505, reversing 1 W. N. C. 93 ; Seely v. Pittsburgh, 1877, 1 Nor. 360 ; Kanser v. Weise, 1877, 4 Nor. 366 ; Craig v. Phila., 1879, 8 Nor. 265 ; Phila. V. Rule, 1880, 12 Nor. 15 ; Harriiburg v. Herr, 2 Pear. 278 ; Saw Mill Eun Bridge, 4 Nor. 163 ; Phila. v. Lukens, C. P., 9 W. N. C. 348 ; Crawford's Estate, 38 L. Int. 420. Protestant Orphan Asylum's Appeal, 1886, 43 L. Int. 59. An Act of As- sembly authorizing a municipality to levy a tax for street improvements of partly or wholly local benefit, partly or wholly upon the district benefited, e. jr., "the Act of May 13, 1871, section 12, relating to Pittsburgh, is uncon- stitutional. Discretion of council in imposing assessment— Claim that the im- provement does not benefit the property. — Michener v. Philadelphia, 1888, 20 W. N. C. 542, 45 L. Int. 125. When a sewer is constructed in pursuance of a valid ordinance, a party against whose property a claim is filed for a proportionate part of the cost cannot escape payment on the ground that sewers previously constructed are adequate for the present and future needs of his property, and that, therefore, the construction of the sewer in question is of no benefit to him, but merely of general public bene- fit in connection with other sewers. The court cannot in this respect re- view the discretion of the municipal council. Discretion in discriminating as to imposition — ^Equity. — Saltsman v. Erie, 1878, 26 Pitts. L. J. 55. A court of equity will not interfere to con- trol the sound exercise of a discretionary power vested in a municipal coun- cil, e. g., a, power to "so discriminate in laying the city taxes as not to im- pose on the rural portions those expenses which belong exclusively to the built up portions of the city." Erie v. Eeed's Executors, 1886, 3 Am. 468. Where an act of Assembly confides to a municipal council the determination of the question whether, for purposes of local assessment, certain real estate within the city limits is rural, not enjoying the benefits of the municipal lighting, paving, water supply, police protection etc., the decision of the council is conclusive and will not be disturbed unless the legal discretion so vested in the councU has been grossly abused. When power of local assessment is not implied— Construction of sewers at general expense— Act of May 1, 1876.— Parrish v. Wilkes- barre, 1882, C. P. Luzerne, 2 Kulp, 182, 11 Luz. Leg. Reg. 241. A general power to construct sewers does not imply a power of local assessment to pay • for the improvement ; and where such a power is expressly given, it will not affect a municipality's power to construct a sewer at the general ex- pense where it is not a merely local improvement. The purpose of the Act of May 1, 1876 (P. L. 94), relating to the prelimi- nary estimating of the cost of proposed sewers and streets and the damages 408 ASSESSMENT, TAXATION, LICENSE. [Part //. to which abutting property owners would be entitled, was merely to give such property owners additional safeguards. It does not repeal prior stat- utes giving express or implied power to municipalities to pay for the con- struction of sewers by means of general taxation as well as by such local as- sessment. Assessment not an exercise of right of eminent domain— Lien against exempt property of corporation.— Olive Cemetery Co. i. Phila- delphia, 1880, 37 L. Int. 264. The assessment of a municipal tax for an abutting owner's proportionate part of the cost of constructing a sewer is a species of taxation, not an exercise of the right of eminent domain. Hence a lien for such a tax filed against property of a corporation whose property has been by its charter exempted from all taxation save that for State pur- poses, is invalid. Claim against railroad company for paving or opening street.— Philadelphia v. Philadelphia, Wilmington & Baltimore Eailroad Co., 1859, 9 C. 41. A municipality has no claim against a railroad company for pav- ing a street lying parallel with and contiguous to the railroad : affirming 2 Phila. 37. See also Junction E. Co. v. Philadelphia, 1879, 7 Nor. 424. Berks Street, 1882, 12 W. N. C. 10. Land of a corporation upon which are erected stations, shops etc., necessary to the enjoyment of its franchises is liable to assessment for the benefits thereto arising from the opening of streets. Power to curb. — Schenley v. Allegheny, 1859, 12 C. 29. A power to pave includes the jMJwer to curb wherever that is necessary or usual. Whether it is necessary or usual is a question for the jury. See also Alle- gheny V. Blair, 1873, 24 Sm. 225. Grading of streets— Act of May 23, 1874. — Harrisburg v. Herr. 1877, C. P. Dauphin, 2 Pear. 278. Under the Act of May 23, 1874, a street in a city of the third class may be graded, though not graded and paved, at the expense of the abutting owners, without a petition, by a majority of them. Same— When cost of sewer may be included in assessment.— Mar- shall V. Comm., 1878, 9 Sm. 455. A municipal corporation may in good faith rescind a contract tor grading which a contractor is unable to perform by reason of an unexpected contingency, and enter into a new contract therefor upon fair and reasonable terms, without the consent of the abutting lot owners. And where in such case it becomes necessary, in grading the street, to construct a sewer, the costs of the sewer is properly included in the assessment for grading the street. Change of grade- Philadelphia. — Market Street Change of Grade, 1885, C. P., 42 L. Int. 15. An owner of abutting property in Philadelphia cannot be assessed for the benefit resulting to his property from the change of the grade of a street. Laying water pipes— Act of 1874, Sec. 50.— Harrisburg v. Haehnlen, 1884, C. P. Dauphin, 41 L. Int. 146. The fourteenth clause of Section 50 of the Cities' Act of 1874, provides that the liability of abutting lots to pay assessments for the laying of water pipes in the streets of cities of the third, fourth and fifth classes, shall not extend to lota supplied with water from a well or spring, "but if at any time two owners of such lots or pieces of ground shall desire to obtain a supply of water from the works of such city, the provisions of this section shall first be fully complied with and per- formed." This does not render the owner of such a lot liable by reason of the fact that the owners of other privileged lots on the street applied, as provided, for the use of the city water. Paving streets— Turnpike road.— Northern Liberties V. Heart, 1829, C. P., 3 Haz. Pa. Reg. 350. A municipal corporation possessing power to "pitch and pave " its streets, may pave a street which is also the roadbed of a turnpike company, and assess the cost against the abutting lot owners. Part 11.'] ASSESSMENT, TAXATION, LICENSE. 409 Wilson V. Allegheny, 1875, C. P. Allegheny, 29 Smith, 272. A munici- pality cannot pave and grade a turnpike road within its limits and assess the cost upon the abutting owners where it has not purchased the franchises of the turnpike company : reversing 22 Pitts. L. J. 121. Same— Where middle of street has been reserved for trees and shrubbery.— Alcorn «. Philadelphia, 1886, 2 Am. 494. Where a portion ot the middle of, a street has never been paved, having been reserved for trees and shrubbery, its subsequent alteration to the same character as the rest of the street is an original paving, for the cost of which the abutting property owners may be assessed. Same — Action on claim — Defence — Failure to complete within spec- ified time. — Philadelphia v. Brooke, 1876, 33 L. Int. 169. In an action on a claim for paving etc., brought by a municipality for the use of the pavers, the defendant cannot defend on the ground that the work was not com- pleted at the time specified in the contract. A stipulation as to the time for completion is for the benefit of the municipality alone, and can be waived by it. Interest on amount assessed— Commission for collection.— Northern Liberties v. St. John's Church, iSSO, 1 H. 103. A municipal corporation may lawfully pass an ordinance requiring the owners of property which has been assessed for the expense of introducing water pipes, to pay interest upon the amount of the assessment in default of payment of the latter ; but it could not authorize the imposition of a commission for collection of the debt. Act of May 1, 1876— Plan of iadjoining property etc.— When act is not applicable. — Parrish v. Wilkesbarre, 1882, C. P. Luzerne, 2 Kulp, 182, 11 Luz. Leg, Eeg. 241. The provisions of the Act ot May 1, 1876 (P. L. 94), requiring, where it is proposed to lay out or construct a new street or sewer, a map or plan of adjoining properties, a view, a schedule of value etc., do not apply where, in the exercise of a lawful power so to do, the mu- nicipality proposes to construct a sewer at the general expense. Harper's Appeal, 1885, 13 Out. 9. To entitle a municipal corporation to recover from an owner of abutting property the expense of constructing a local improvement, it must comply with all conditions precedent, whether prescribed by act of Assembly, charter or ordinance. An ordinance author- izing such an assessment of the cost of a sewer, passed by the council of a city of the third class without a previous compliance with the Acts of May 23," 1874, and May 1, 1876, as to estimate of cost, maps and schedule of value of property to be assessed, is void. The collection of such an assessment will be restrained by injunction. IV. Miscellaneous. Taxation of municipal property for county purposes.— Erie County V. Erie City, 1886, C. P. Erie, 17 W. N. C. 396, 1 C. C. E. 540. Property owned by a municipal corporation and nece-ssary for carrying on a depart- ment of the municipal government is not taxable for county purposes. It was exempt previous to the adoption of the Constitution of 1874 and the Act of May 14, 1874. That it was not specifically included in the public property enumerated in the Act of 1874, does not render it liable by impli- cation. Affirmed : 3 Am. 360, 18 W. N. C. 309. See Sewickly Borough v. Sholes. 1887, 20 W. N. C. 413, deciding that the proviso of the Act of 1874 conflicts with Art. Ill, Sec. 3, of the State Constitution, since the proviso imposes taxation while the title of the Act discloses only a purpose to ex- empt from taxation. Erie County v. Commissioners of Waterworks of Erie City, 1886, C. P. Erie, 17 W. N. C. 398, 1 C. C. E. 547. Property of a municipal corporation which is used in the exercise of a usual municipal function, e.g., supplying 410 ASSESSMENT, TAXATION, LICENSE — ASSIGNMENT. [Part //. citizens with water, is not liable to taxation for county purposes upon the ground that the municipality derives a revenue from it. Jieversed : 3 Am. 368, 16 W. N. C. 310. Chad wick v. McGinnes, 1881, 13 Nor. 117. Where a jua^i-corporation was created for the purpose of supplying a certain ward of a city with water, and the profits were paid to the city treasurer to be held on account of municipal taxes against the ward, the property of the corporation which was indispensable to the operation of the water works, was Tield neverthe- less liable to a county tax : affirming 2 Del. Co. 127. Acts of March 27, 1865, and April 9, 1873— Borrower's contract for payment of taxes assessed on loan. — Fidelity Trust Co. v. Scranton, 1883, 6 Out. 387. The Act of March 27, 1865 (P. L. 57), which authorizes "any borrower" to contract "for the payment, in addition to interest, of any and all sums assessed or to be assessed for taxes upon the loan or its interest," applies as well to municipal corporations as to other corporations and individuals. The Act of April 9, 1873 (P. L. 68), repealing all laws exempting municipal bonds from taxation does not affect the power of a mu- nicipality to so contract. Weighing coal— Charge for use of public scales.— O'Malley v. Free- port, 1880, 15 Nor. 24. An ordinance requiring the purchase and sale of coal by weight and measure, and to pay for the weighing and the use of the public scales, is reasonable and constitutional. The charge for weighing is not a tax. Taxation of bonds purchased with sinking fund tax— Statutes.— Comm. V. Beading, C. P. Dauphin, 1880, 15 W. N. C. 529. Municipal bonds which have been purchased by the municipality with the sinking fund tax provided by the 11th section of the Act of May 23, 1874, are not subject to the State tax of three miUs on the dollar provided by the 32d section of the Act of April 29, 1844. Bonds issued in aid of private corporations— Exemption— What capital stock is not exempted. — Comm. v. Pittsburgh & Connellsville Railroad Co., 1872, C. P. Dauphin, 2 Pear. 389. An act of Assembly au- thorizing certain municipalities to subscribe to the stock of a corporation and providing for the payment of interest to the stockholders, but that the stock should not be subject to any tax in consequence of the payment of such interest, and a subsequent statute enacting that the bonds issued by any municipality, in accordance with the authority to subscribe, or by the cor- poration in question, shall be exempt from taxation until the clear profits of the company shall amount to six per cent. , do not relieve such corpora- tion from the payment of a State tax on the appraised value of its capital stock. Comm. v. Danville, Hazleton & Wilkesbarre R. Co., 1875, C. P. Dauphin, 2 Pear. 400. A corporation cannot claim exemption from taxes on its cap- ital stock by virtue of an act of Assembly which provides that the bonds of the company and all municipal bonds issued in payment of subscription to the'stock, "and the property, real and personal." which the said company now holds or may acquire, shall be exempt from taxation. The stock- holders, not the corporation, are the owners of the stock. The corporation is merely used as the instrument of collection. ASSIGNTIHEPiX. Ai> to negotiability of municipal warrants, see Contracts. Of judgment, see Judgment. Philadelphia v. Lockhart, 1873, 23 Sm. 211. An executory contract for the payment of money by a municipal corporation may be assigned so as to Part //.] ASSIGNMENT — ATTACHMENT. 411 pass an equitable right of action to the assignee. But a municipal corpo- ration is not bonnd to recognize a partial assignment of a claim against it. See also Philadelphia's Appeal, 1878, 5 Nor. 179 ; Geist's Appeal, 1883, 8 Oat. 351. . ' McManus v. Denuison Township, 1886, C. P. Lancaster, 4 Lane. L. Eev. 121. An assignment of part of a claim, arising out of an entire contract, against a manicipal, or {Mosi-municipal, corporation, does not pass an equit- able right of action to the assignee which he can enforce at law. AssiJiapsix. See Action and Suit, AXTACHMENTr. Debt owing by municipality cannot be attached.— Erie v. Knapp, 1857, 5 C. 173. A municipal corporation cannot be made a garnishee upon an execution attachment under the Act of June 16, 1836. See also Taylor V. Knipe, 1872, C. P. Dauphin, 2 Pear. 151. Greer v. Rowley, 1853, D. C. Allegheny, 1 Crnm. 1, 1 Pitts. L. J. 3. A debt owed by a municipal corporation for work and labor done by a con- tractor in grading and paving one of its streets, cannot be attached in exe- cution at tihe suit of a judgment creditor of such contractor. Same — County.— Pettebone v. Beardslee, 1880, C. P. Luzerne, 1 Kulp, 180, 9 Luz. Leg. E^. 196. A county cannot be summoned as garnishee in an attachment execution. , Same— Township.— Slatery*. Murphy, 1879, C. P. Schuylkill, 1 Schuylk. Leg. Eec. 103, 8 Luz. L. Eeg. 272. A township is a gitasj-municipal cor- poration, and cannot be made a garnishee in attachment. Same — Borough.— Van Volkenburgh V. Earley, 1880, C. P. Luzerne, 1 Kulp, 216, 9 Luz. Leg. Eeg. 257. A borough cannot be made garnishee in attachment execution. Same— Trustees Phila. Gas Works.— Laughlin v. Weveling, 1886, c. P., 17 W. N. C. 268, 43 L. Int. 98, 1 C. C. E. 370. The trustees of the Philadelphia Gas Works are a department of the municipal government, and a debt owing by them cannot be attached. Attachment for contempt— Award of municipal contracts— Refusal to receive and schedule bid.— Comm. v. Douglass, 1884, c. P., 14 W. N. C. 453—4-5. County commissioners cannot refuse to receive and schedule a bid for the furnishing of supplies to the municipality upon the ground that they do not deem the bidder a responsible party. It is their duty to receive and schedule all bids duly offered, and to afterward exercise their discre- tion in awarding or withholding the contract. But an order to the com- missioners to receive and schedule the bid is not equivalent to an order to them to award the contract to such bidder if his bid be the lowest. The proper remedy for such a refusal is a rule for an attachment for contempt, or a bill to enjoin the commissioners from awarding the contract to any bidder but the petitioner. But such an attachment will not issue and such an injunction will not be granted where the commissioners acted under the advice of the law ofiBcer of the municipality in rejecting the complainant's proposals : Reversed in 16 W. N. C. 476, 33 Pitts. L. J. 416. Attachment to enforce obedience to mandamus.— Comm. v. Taylor, 1860, 12 C. 263. Municipal legislators have no discretion in obeying a writ 412 ATTOENEY — BENEFITS AND DAMAGES. [Part II. of mandamus directing them to provide for the payment of the corporate liabilities ; the jodgment will be enforced by attachment. ATTORNEY. City attorney, nee Officers. Employment of, by boards of health, see Nuisance. AVOCAXIOPiS. Taxation or license of, see A.ssessment Etc. A'WARD. Appeal from, see Appeal. Of damages inflicted in exercising right of eminent domain, see Eminent Domain. Of contracts, see Contracts. BALLOTS. See Elections. BAI«(KS. Taxation of and licensing, see Assessment Etc. BANQUETS. See Entertainments and Public Celebrations. BARRIERS. Upon roads or bridges, see Negligence. BENEFITS AND DAMAGES. To property, from grading and paving streets, see Assessment Etc. ; from opening or changing grade of streets, see Eminent Domain. Part //.] BEQUEST — BO BOUGHS. 413 BEQUEST. See Trust. BIDS. See Contracts. BOARDS OF HEALTH. See Nuisance. Negligence of, see Negligence, I. Board of Health v. Harrisbnrg, 1875, C. P. Dauphin, 2 Pear. 242. A board of health previously created in a city, is not abolished by the Act of May 23, 1874 ; but a power conferred upon such a board to draw money out of the city treasury without an appropriation by the city council is revoked by the Constitution of 1874, and is not saved by Section 2 of the Schedule. BOPIDS. Of municipality : see Debts and Bonds ; issued in aid of private corporations, see Subscriptions Etc. Official, see Officers. Of tax collectors, proper parties to actions upon, see Action and Suit. BOOKS. Mandamus to compel suspended officer to deliver, see Officers. BOROUGHS. Incorporation and division of, see Incorporation Etc. Officers of, see Officers, Councils. Imposition of fines by chief burgess for violation of borough ordinances, see Or- dinances, IV. Change in grade of streets, see Eminent Domain. Action by, against tax collector, sec Action and Suit. Save no power to construct sewers, see Sewers. 414 BOEKOWING MONEY — BUEGESS. IPart 11. BORR.O'WING mOKEY. See Debts and Bonds, Assessment Etc. BO VXD ARIES. Of municipalities, see Incorporation Etc. BRIDGES. Negligence in constructing or maintaining, see Negligence. Appropriations for repair of, see Contracts, IV. Bridge >;ompanies, making toll bridges free etc., see Private Corporations. Quantum meruit Jor expense of construction, see Action and Suit. Philadelphia v. Field, 1868, 8 Sm. 320. The Legislature may constitu- tionally provide for the erection of a free hridge within the limits of a mu- nicipal corporation, appointing commissioners to supervise its erection and to create a loan for the purpose, and requiring the city councils to provide for payment of such loan and the interest upon it. BIJII^DIBIGS. Prohibition of erection of wooden buildings, see Ordinances and By-laws. Public buildings, mechanics' lien against, see Property Etc. Act of April 21, 1855 — Open spaces — Penalty for violation. —Singer V. Philadelphia, 1886, 2 Am. 410. The city of Philadelphia may recover the penalty imposed for the violation of the Act of April 21, 1855, relating to providing open spaces for buildings, irrespective of the highway commis- sioner's notification of the city solicitor of such violation. The act includes all buildings within the city. BURIAL GROUXDS. Opening streets through, see Eminent Domain. BURGESS. See Boroughs. Part IL] BUSINESS— CHAKTEES. 415 BUSINESS. Taxing or licensing, see Assessment Etc. Loss of, by reason of non-repair of street, see Negligence. BY-LA ^VS. See Ordinances. CARRIAGES. License fee for, see Assessment Etc. CATTLE. See Animals. Slaughter hoiises and cattle yards, see Ordinances. CEIHETERIES. Opening streets through, see Eminent Domain. CHAIVGE OE GRADE. See Eminent Domain. CHARITY. See Trust. Diversion of use of property of charitable corporations by municipality, see Pri- vate Corporations Etc., VI. CHARTERS. Of municipalities, see Incorporation Etc. ; Powers and Bights of Municipal Cor- porations. Acceptance of general statutes relating to municipalities, see Classification of Mu- nicipalities. Of private corporations, see Private Corporations Etc. 416 CLASSIFICATION OP MUNICIPALITIES. [PoW II. CIXY COMmiSSIONERS. See Commissioners. CITY COXTROLLER. See Controller. CITY COUNCILS. See Councils. CITY BXGINEER. See Officers. CIXY SOLICITOR. Power to commence legal proceedings for city, see Action and Suit'. CITY ^WARRANTS. gee Contracts. CLASSIFICATION OF MUNICIPALITIES: LO- CAL AND SPECIAL LEGISLATION. As to the erection of wooden buildings within municipal limits, see Ordinances. Classification of counties according to population — Constitution- ality — Wheeler v. Philadelphia, 1875, 27 Sm. 338. A statute classifying counties according to population, e. g., the Act of May 23, 1874, is not un- constitutional. Where a class contains but one city.— Kilgore v. Magee, 1877, 4 Nor. 401. Article III, Section 7, of the new State Constitution, prohibiting local or special legislation, does not prevent the classification of cities for various purposes according to their population, and the fact that some of the classes contain but one city, does not render such classification unconstitutional. Same— When unconstitutional.— Davis v. Clark, 1884, 10 Out. 377. But it is unconstitutional vrhen it practically and permanently excludes certain counties from its operation, though not mentioning them by name. McCarty v. Comm., 1885, 14 Out. 243. An act applying to only such counties as at the time of its passage have a population between a specified Part 11.'] CLASSIFICATION OF MUNICIPALITIES. 417 minimum and maximum, e. g., the Act of June 22, 1883, relating to fees of county officers, is unconstitutional : Beveraing 42 L. Int. 181, 2 Lane. L. Rev. 139, 2 Chest. Co. E. 417. Same— Where statute is limited to cities of less than a specified population.— Scranton v. Silkman, 1886, 3 Am. 191. A statute which is limited in its application to cities of less than a specified number number of inhabitants is unconstitutional, although but one city is thereby excluded from its operation, and that city is specially provided for in the matter to which the statute pertains by a special system of its own : Beveraing 3 C. P. Repr. 10, 1 C. C. E. 329. See also Lake Shore etc. E. Co.'s Appeal, 1885, C. P. Erie, 1 C. C. R. 327. GdOgrapMcal description.— Comm. v. Patton, 1879, 36 L. Int. 226, 26 Pitts. L. J. 103. Legislation concerning cities or counties which are desig- nated by geographical description, as, "in which there shall be any city, incorporated at the time of the passage of this act, with a population ex- ceeding eight thousand inhabitants, situate at a distance from the county seat of more than twenty-seven miles by the usually traveled public road," is ' ' special ' ' within the prohibitiqp of the State Constitution. Proviso that statute shall not apply to cities of a certain class.— Wilkesbarre v. Myers, 1886, 3 Am. 395. A statute is not unconstitutional because of a proviso therein that it shall not apply to cities of the first class, «. g., the Act of July 7, 1879, enlarging the jurisdiction of aldermen etc., where such proviso manifestly is intended to apply only to Philadelphia, as to which provision is made in the Constitution itself respecting the subject of the statute. Exception of cities where subject is regulated by local laws.— Evans V. Witmer, 1887, C. P. Lancaster, 4 Lane. L. Eev. 105. The Act of June 25. 1885, relating to the collection of taxes in boroughs and townships, is unconstitutional, in that it excepts from its operation any taxes "the col- lection of which is regulated by a local law." Where acceptance of statute is optional. — City of Scranton School District's Appeal, 1886, 3 Am. 176. A statute regulating the affairs of counties, cities etc., violates Article III, Section 7, of the State Constitu- tion, when it either produces or may produce purely local results. E. g. , the Act of March 18, 1875, providing a method of taxation for cities of the third class contravenes the constitutional provision, because, under the proviso in the fifth section, the operation of the act is limited to such cities as may by ordinance accept its provisions. See also Comm. v. Patton, 7 Nor. 258 ; Scowden's Appeal, 15 Nor. 422 ; Davies v. Clark, 10 Out. 90 ; McCarthy v. Comm., 14 Out. 243 ; Comm. v. Halstead, 1886, 18 W. N. C. 385 : Beveraing 2 C. P. Eepr. 247, 1 C. C. E. 335. Eeading v. Savage. 1888, 22 W. N. C. 3. The Act of May 23, 1874, pro- viding that cities of the third class theretofore incorporated may become sub- ject to its provisions by the passage of an ordinance of acceptance, is uncon- stitutional. Fees of county oflcers— Act of June 12, 1878.— Morrison v. Bachert, 1886, 43 L. Int. 240, 33 Pitts. L. J. 463. A statute, e. g., the Act of June 12, 1878 (P. L. 187), providing for the ascertainment of the fees of county officers is a " law regulating the affairs of counties," and when it perpetu- ally excludes from its operation all counties of a population above a speci- fied number, it is in violation of Article III, Section 7, of the Constitution. Street railways— Act of March 19, 1879.— Weinman v. Wilkinsburg etc. Ewy. Co., 1888, 45 L. Int. 176. A statute, which while dealing with a subject for general legislation, limits its provisions so that they aipply only in cities of a certain class or classes, contravenes the constitutional pro- hibition against special or local legislation, e. g., the Act of March 19, 1879, relating to the incorporation and regulation of street railway companies in cities of the second and third classes. See also Davis v. Clark, 10 Out. 377. 27 MUKPHY. 418 CLASSIFICATION OF MUNICIPALITIES — COMMISSIONEBS. [Port II. Art. Vm, Sec. 3, of new Fliila. charter— Becoreiy of amount of judgments.— Betz v. PhUadelphia, 1887, C. P., 21 W. N. C. 155. The proyisions of the new charter of the city of Philadelphia, Art. VIII, Sec. 3, relating to the recovery of judgments against the city, are in conflict with Article III, Sec. 7, of the State Constitntion, prohibiting the passage of special or local laws. The Act of April 15, 1834, providing for mandMmua execution, is still in force.' CLERKS. See Officers. Of Philadelphia councils, award of prirding contracts by, see Contracts. COAL. Begulation of sale of, see Ordinances. COLLBCXIOBi OP XAXES. See Assessment Etc. Classification of municipalities as to, see Classijieaiion Etc. Action against collectors, see Action and Suit. commissiox. For sale of municipal bonds, see Debts and Bonds. commissiONERS. See Officers. As parties to action, see Action and Suit. Of Fairmount Park, Philadelphia, see Id. For erection of bridge, see BriHges. Dutjf of, to receive and schedule bids, see Contracts. Power to bind county by contract, see Contracts, II. Orders by, upon municipal treasury, see Id., IV. Mandamus by water commissioners to compel issue of bonds, see D^ts and Bonds. Part //.] COMMITTEE — CONSOLIDATION. 419 CO]IIIHIirrBE. Negligent performance of contract entered into by committee of councils, see Neg- ligence, I. Comm. V. Pittsburgh, 1850, 2 H. 177. Municipal corporations may per- form portions of their business through the instrumentality of committees. COIHMOX COVPiCIL. See Councils. See Contracts. Of officers, see Officers. For property taken under right of eminent domain, see Eminent Domain. Of election officers, see Elections. Of councilmen, see Councils. For sale of municipal bonds, see Debts and Bonds, CONDITIONS. Bight of municipality to impose, in granting to private corporations the privilege of uMng streets, see Private Corporations Etc. CONSENT. Of municipality to entry of private corporations on streets, see Private Corpora- tions Etc. CONSEQUENTIAI, DAMAGES. See Eminent Domain. CONSOLIDATION. See Incorporation Etc. 420 CONSTITUTIONAL LAW— CONTEACTS. [Pari 11. CONSTITUTIONAI, V,AW. Taxation impairing the obligation of contracts, increase of municipal license fees, casting expense of municipal improvements upon owners of private properly etc., see Assessment Etc. See also Contracts, Debts and Bonds, Subscriptions Etc. Appointment, removal and compensation of officers, see Officers. Local and special legislation, see Classification of Municipalities. Eminent Domain : see that head ; taking of franchises of private corporations, see Private Corporations Etc. Alteration of municipal charters, boundaries etc. , see Incorporation Etc. Occupation of streets by private corporations, see Private Corpo-rations Etc. Loan of municipal credit, see Judgment. Increase of debts, see Debts and Bonds. Alteration of municipal charter or limits, see Incorporation Etc. Jurisdiction in cases of injunction against corporations, see Injunction. Trial by jury, see Ordinances, IV ; right of municipality to, see Powers and Sights Etc.' Repeal of charters or privileges under which business has not been commienced, see Powers Etc. See Attachment. I. IN GENERAL. CONTEMPX. CONTRACTS. II. THE POWEE OF OPFICEES TO BIND THE MUNICIPALITY BY CONTEACTS. III. THE AWAED OF CONTEACTS : LOWEST BIDDEE. IV. APPEOPEIATIONS AND WAEEANTS FOE PAYMENT. Compensation of officers, see Officers. Impairment of obligation, see ConstitiUional Law. Assignment of debts owing by munvApalitics, see Assignment. Attachment of debts owing by municipalities, see Attachment. Negligence in performance of contracts, see Negligence. Contracts between municipalities and pHvate corporations, see Private Corpora- tions Etc. Pari //.] CONTRACTS. 421 I. In General. When municipality is to be treated as contracting rather than leg- islating—Supply of gas— Impairing obligation of contract.— Western Savings Fund v. Phila., 1854, 7 C. 175, 185. Whenever a mnnicipal corpo- ration engages in enterprises not public in their nature, it acts as a private corporation, and is subject to the same restrictions ; it no longer legislates but contracts. The supply of the inhabitants with gas by means of the or- ganization of a company for that purpose, with a view to" the profit of the city in the transaction, renders the city quoad hoc a private corporation, al- though the public may derive a common benefit therefrom ; and the obliga- tion of a contract entered into by the city in relation to such enterprise can- not be impaired, because such impairment'may be deemed beneficial to the citizens. Ultra vires.— Shroder V. Lancaster, 1875, C. P. Lancaster, 6 Lane. B. 200. Contracts beyond the scope of the corporate powers of a municipality are not binding upon it. As to contracts beyond powers of officers assuming to contract, see II, infra. Support of poor.— Salsbnry v. Philadelphia, 1863, 8 Wr. 303. A muni- cipal corporation is not liable for support voluntarily furnished to persons who are chargeable upon the municipality, except upon an express contract. Contract with railroad company — Completion within specified time —Time, when not of essence.— Pittsburgh, Fort Wayne & Chicago E. Co. V. Pittsburgh, 1858, D. C. Allegheny, 1 Pitts. 392, 5 Pitts. L. J. 374. Where a municipal ordinance gives to a railroad company a choice of routes, but provides that the road must be completed within two years from the passage of the ordinance, and the company proceeds at once to execute contracts and incur liabilities for the construction of the road, but is prevented by causes alleged to be beyond its control, from completing it within the speci- fied time, it does not thereby forfeit the right. Time is not of the essence of such a contract where the municipality could derive no benefit from its performance nor sustain any injury by its breach. Completion of paving within specified time— Stipulation for bene- fit of mimicipality alone— Waiver.— Philadelphia v. Brooke, 1876, 33 L. Int. 169. In an action on a claim for paving etc., brought by a municipal- ity for the use of the pavers, the defendant cannot defend on the ground that the work was not completed at the time specified in the contract. A stipulation as to the time for completion is for the benefit of the municipal- ity alone, and can be waived by it. Defence by owner of abutting property against paving claim —Erie V. Butler, 1888, 21 W. N. C. 459. When a muncipality in a contract for paving a street expressly stipulates that it shall not be liable for the cost, but, in substance, that the contractor shall look to the assessment bills against owners of abutting property for payment of his claims, the city being used as a mere instrument in the collection of such bills, it seems that an owner of abutting property against which such a claim is made may set up as a total defence to such claim that the work was so defectively done as to be worthless. But if the work is done appropriately as contracted for, the fact that it was not in some minor particulars done properly, in accordance with the contract, cannot constitute a total defence to such claim. The property owner is entitled, however, to a corresponding deduction from the amount of the claim. See also Pepper v. Phila., 1886, 4 Am. 96 ; Watson v. Phila., 1881, 2 Out. Ill, 422 CONTRACTS. [Port 11. Sub-contractor— Payment— Stipulations enforceable by municipal- ity alone. — Jones v. Philadelphia, 1886, C. P., 43 L. Int. 57, Where con- tractors with a municipality have defaulted in the continuance of the work to be done under the contract, and it has been awarded to others,' a sub- contractor who has furnished labor or materials to the defaulting contractor has no claim therefor against the municipality or the party who completes the work, although it was provided by the agreement between the munici- pality and the original contractor that "the city shall require full and en- tire payment by the contractors for labor and materials to the extent of the retained percent-age [Irom monthly estimates of the work done], and claims for the same may be filed etc., and such sum may be retained until the said claims are paid, withdrawn or secured." The municipality alone could de- termine whether or not it would enforce these stipulations. When municipality may rescind and enter into new contract for grading— Abutting owners— Assessment— Sewers. — Marshall v. Comm., 1868, 9 Sm. 455. A municipal corporation may in good faith re- scind a contract for grading which a contractor is unable to perform by reason of an unexpected contingency, and enter into a new contract there- for upon feir and reasonable terms, without the consent of the abutting lot owners. And where in such case it becomes necessary in grading the street, to construct a sewer, the cost of the sewer is properly included in the assess- ment for grading the street. Rescission by contractor— Special contract sewers. — Becker ». Phila- delphia, 1887, C. P., 45 L. Int. 35. A special contract for the building of sewers construed as not j ustif ying a rescission by the contractor on the ground of a private landowner's refusal to recognize his claim to stone removed in the construction. Contract in which councilman is interested. — Dunlap v. The City, 1883, C. P., 13 W. N. C. 98. The fact that a member of the city council is an employ^ of a contractor with the city, does not render the contract void under the Act of May 23, 1874, where such member merely received a fixed salary from such contractor. Aa to quo warranto proceedings against couneilmen for being unUmfuMy interested in municipal contracts, see Councils. Contract to purchase land for public building— Necessity of ordi- nance. — ^Fuller V. Scranton, 1886, C. P. Lackawanna, 1 C. C. E. 405. Under the Act of May 23, 1874, a purchase of land for municipal buildings must be authorized by a duly enacted ordinance. A mere " adoption " of a com- mittee report recommending the purchase is not sufficient. Statute of limitations— Officer's services in criminal proceedings.— Lancaster County v. Brinthall, 1857, 5 C. 38. The statute of limitations runs in favor of a county upon a claim against it for services rendered by an officer in criminal proceedings. II. Tlie Po'wer of Officers to Bind tlie municipality by Contracts. Change of plans for municipal work— Payment for extra work.— Hague V. Philadelphia, 1864, 12 Wr. 527. Where municipal officers to whom has been committed the supervision of a municipal work, have been given only a special and limited authority with respect to the plana for the PaH 11.'] CONTRACTS. 423 same, and the cost thereof, they have no power to change such plans or to promise payment for extra work. Addis V. Pittsburgh, 1877, 4 Nor. 379. There can be no recovery upon a quantum meruit by a contractor for extra work done by him at the instance of municipal officers, where the latter had no authority to make the contract. County commissioners.— Trechler v. Berks, 1854, 2 Gr. 445. One county commissioner cannot bind the county by a contract unless he act by the au- thority of the majority of the board. Contract to sell land owned by Philadelphia— Act of April 21, 1858.— Ross V. Philadelphia, 1887, 19 "W. N. C. 327, 5 Am. 222. An officer or agent of the city of Philadelphia cannot, unless specially authorized by ordinance, make a contract to sell to a purchaser from the city a piece of ground owned by the latter other than, or in exchange for, a piece designated for such sale by ordinance. Such a contract is prohibited by the Act of April 21, 1858 : affirming 42 L. Int. 312. Guardians of poor— Phila.— Almhouse supplies— Substitution upon default of original contractor.— Spoffard v. Philadelphia, 1886, C. P., 43 L. Int. 184. Where a contractor defaults in fulfilment of his contract to furnish supplies for the PhiladeTphia Almshouse, one who at the instance of the guardians of the poor furnishes such supplies upon the guardians' promise of the unpaid balance of the original contract price, but without any other authorization or appropriation, cannot recover from the city. Duty to ascertain officers' powers. — Bamesji. The City, 1859, D. c, 16 L. Int. 172, 3 Phila. 409. Persons dealing with municipal officers are bound to know the limits of the power of the latter to bind the municipality. Davis V. The City, 1859, C. P., 3 Phila. 374, 16 L. Int. 147. The agents of a municipal corporation can act only within the limits of their authority, and persons contra<;ting with them are bound to ascertain its extent. Contract by officer without apparent authority.— Dungan v. Titus- ville, 1872, C. P. Crawford, 4 Leg. Gaz. 234. A municipality is not liable upon a contract made by one of its officers without any apparent authority. Lease of property for armory — Committee of councils.— Pittsburgh V. Biggert, 1877, 5 W. N. 0. 281. It is the duty of the cities and counties of the State, under section 64 of the Act of May 4, 1864 (P. L. 221), to provide an armory for the militia within their limits, for the rent of which the cities and counties are entitled to be indemnified out of the brigade fund. Where the police committee of a municipal council rented certain premises for an armory under the act' without authority to bind the city and without a rati- fication of the act by the city, it was held that the latter was liable to the lessor in an action for use and occupation. Contracts for public printing in Phila.— Clerks of councils— New charter.— Summers V. Paist, 1888, C. P., 45 L. Int. 196. The 13th section of the Philadelphia ordinance of May 5, 1855, taken in connection with the ordinance of Dec. 31, 1887, appropriating money for certain printing was not a designation of the clerks of councils as the proper officers to enter into con- tracts for printing to be done for the city, within the meaning of the 14th section of the new charter. Such contracts, therefore, are under said section of the charter, to be entered into by the mayor. DuUtatur, whether the clerks of councils are "officers " within the mean- ing of said section. III. Xlie A-^ard of Contracts : Lowest Bidder. Discretion— Responsibility of bidder— Injunction— Mandamus.— Comm. V. Mitchell, 1876, 34 L. Int. 21. Where an Act of Assembly directs that contracts for municipal public works shall be awarded to " the lowest 424 CONTRACTS. [Part //. responsible bidder," a discretion is vested in the municipal authorities, and that discretion will not be controlled by mandamus where the bidder selected was not the lowest. See also Findley v. Pittsburgh, 1876, 34 L. Int. 36, affirming 31 L. Int. 365 ; Ctomm. v. Guardians of The Poor, 1883, C. P., 16 Phila. 6, 40 L. Int. 46. Fuller V. Scranton, 1883, C. P. Lackawanna, 6 Luz. Law T. 21. In let- ting contracts for public improvements a municipal council, although it possesses a discretion in the choice of a responsible bidder, must proceed strictly in accordance with the charter provisions and ordinances relating thereto. An injunction will He to restrain the awarding of such a contract otherwise. See also Blair v. Scranton, 1884, C. P. Eackawanna, 6 Luz. Law T. 31. Hill D. Kensington, 1850, C. P. Phila., 1 Parsons, 501. But a municipal corporation will not be restrained from rescinding a contract with a party whom the municipal authorities deem incompetent and awarding it to an- other. Coram. V. Douglass, 1884, C. P., 14 W. N. C. 453-4-5. County commis- sioners cannot refuse to receive and schedule a bid for the furnishing of sup- plies to the municipality upon the ground that they do not deem the bidder a responsible party. It is their duty to receive and schedule all bids duly offered and to afterward exercise their discretion in awarding or withholding the contract. But an order to the commissioners to receive and schedule the bid is not equivalent to an order to them to award the contract to such bid- der if his bid be the lowest. The proper remedy for such a refusal is a rule for an attachment for contempt or a bill to enjoin the commissioners from awarding the contract to any bidder but the petitioner. But such an at- tachment will not issue and such an injunction will not be granted where the commissioners acted under the advice of the law officer of the munici- pality in rejecting the complainant's proposals. Reversed in 16 W. N. C. 476, 33 Pitts. L. J. 416. Failure of lowest bidder to comply with ordinance. — Wiggins v. Phil- adelphia, 1868, C. P. Phila., 2 Brewst. 444. A municipal corporation will not be enjoined from awarding a contract to one whose bid was higher than that of the complainant where the latter did not comply with the terms of the ordinance inviting the bids. Act of May 23, 1874— "Eesponsible.''— Pindley®. Pittsburgh, 1875, C. P. Allegheny, 22 Pitts. L. J. 197, What the term "responsible" means in the Act of May 23, 1874. See also Comm. v. G-uardians of The Poor, 1883, C. P., 16 Phila. 6, 40 L. Int. 46. IV. Appropriations and 'Warrants for Payment. See also II and III, supra. For payment of municipal bonds, see Debts and Bonds. Appropriations to private corporations, see Private Corporations in their Relations with Municipalities. Necessity of previous appropriations.— Loomis v. Wilkesbarre, 1878, C. P. Luzerne, 7 Luz. Leg. Eeg. 154. A municipal corporation can con- tract no debt and pay no money from its treasury except upon appropriation duly made by ordinance or resolution, duly engrossed and certified to the mayor for his approval. Same— Mandamus to compel head of department to make improve- ment.— Comm. V. McFadden, 1880, C. P., 8 W. N. 0. 454. A mandamus will not lie to compel the head of a department of a municipality to make a Part Il.'\ CONTKACTS. 425 public improvement in pursuance of an ordinance, when no money has been appropriated for the purpose by the municipality. Same— Mandamus to city treasurer.— Board of Health v. Harrisburg 1875, C. p. Dauphin, 2 Pear. 242. Mandamus will not be granted to com- pel a city treasurer to pay a claim when it has not been countersigned by the controller, and there is no money appropriated for its payment and no money in the cily treasury except what has been specifically appropriated, and the city's debt has reached the constitutional maximum. Same— Orders by commissioners on treasurer.— Mayor v. Commission- ers of Scranton, 1875, Mayor's Court, Scrautou, 3 Luz. Law Times, O. S., 10. City commissioners cannot draw orders upon a city treasurer without an ap- propriation having first been made by the city council. Same— Board of health— Act of May 23, 1874.— Board of Health v. Harrisburg, 1875, C. P. Dauphin, 2 Pear. 242. A board of health previously created in a city is not abolished by the' Act of May 23, 1874 ; but a power conferred upon such a board to draw money out of the city treasury without an appropriation by the city council is revoked by the Constitution of 1874, and is not saved by section 2 of the Schedule. Same— Provision for previous appropriation repealed pro tanto by later Act. — Assessors of Philadelphia v. Commissioners, 1869, C. P. Phila.. 3 Brewst. 333. Where an act of Assembly prohibits municipal ofScers from making any contract on behalf of the municipality without a previous ap- propriation therefor, but a later act commands said ofiScers to furnish cer- tain books etc. with no provision for such previous appropriation, the later act is a repeal pro tanto of the former and the officers will be compelled by mandamus to comply with its provisions without a previous appropriation. Same— When appropriation is not necessary to recover from city.— Struthers v. Philadelphia, 1877, C. P., 4 W. N. C. 378. Where the law raises an obligation to pay upon the part of a municipal corporation, the failure of the council to make an appropriation for such payment is no de- fence to an action against the municipality. See also Reiner v. Philadel- phia, 1878, 5 W. N. C. 449 ; Wilson v. Philadelphia, 14 W. N. C. 74. Same— Presumption as to authority to draw and pay warrants- Injunction. — Stewart v. Scranton, 1880, C. P. Lackawanna, 2 Luz. Law T. N. S. 151. Since the Act of May 23, 1874 (P. L. 23), makes it a misde- meanor, punishable with fine and imprisonment, for any municipal officer to draw any warrant, or pass any voucher, or pay the same for a claim against the city, without previous authority of law, it will be presumed that such officers have not so drawn or paid warrants etc. , unless the law was fully complied with, and an injunction will not be granted to restrain such officers from drawing or paying warrants on the ground that the con- tract in payment of which they were issued was illegal and fraudulent and that no appropriation had ever been made. Same— Philadelphia— Act of April 21, 1858— Purchase of substi- tute for article specified in ordinance. — Ottoman Calvery Co. v. Phila- delphia, 1886, 17 W. N. C. 531. Under the Act of April 21, 1858 (P. L. 386), providing that no debt or contract shall be binding upon the city of Philadelphia unless an appropriation has been made specifically to cover it. an article cannot be purchased as a substitute for one mentioned in an ordi- nance making an appropriation for a purchase, although the substituted article be equally good or cheap. Same diversion of appropriations— Contingent expenses.— Gate o. Philadelphia, 1884, C. P., 14 W. N. C. 274. Where a contractor with a municipal corporation to supply the latter with articles of a certain kind under a specific item of an appropriation has not exceeded the appropria- tion, he is entitled to recover the price of the supplies furnished, notwith- standing that the municipal authorities have improperly allowed the appro- priation to be diverted to a different purpose. 426 CONTRACTS. [PrtW //. Tatham v. Philadelphia, 1876, C. P., 2 W. N. C. 564, 11 Phila. 276, 33 L. Int. 220. Under an ordinance making an appropriation to a municipal offi- cer for "contingent expenses," the appropriation cannot be used for a pur- pose which the council has clearly foreseen and might have specified. Same — When appropriation cannot be treated as exhausted. — Doll V. Philadelphia, 1883, C. P., 16 Phila. 142, 40 L. Int. 100. An item of an appropriation cannot be treated as exhausted by a contract under which articles are to be delivered to a municipality when required during an en- tire year, with no limit as to quantity, where the quantity actually deliv- ered has not in fact exhausted the item. Act of June 11, 1879— Disposition of surplus revenue.— McNichol r. Philadelphia, 1882, C. P., 15 Phila. 189, 39 L. Int. 228. The Act of June 11, 1879 (P. L. 130), regulating appropriations and expenditures of cities of the first class is not to be so construed as to prevent councils from disposing of a surplus that may be held in the treasury at the end of the year, by reason of the actual revenue having exceeded the estimated expenditures. It was intended merely to prevent the expenditures from exceeding the in- come. Appropriation for necessary repair of roads etc. — Mandamus exe- cution. — Lackawanna Iron and Coal Co. v. Walsh, 1863, C. P. Luzerne, 3 Luz. Leg. Obs. 53. Municipal authorities may appropriate a reasonable amount of the proceeds of an annual tax to the necessary repairs of its roads and bridges, without rendering themselves liable for disobeying amandamus execution. See also Larimer v. Pitt Township, C. P. Allegheny, 3 Luz. Leg. Obs. 27 ; Comm. o. Commissioners of Allegheny, 1863, C. P.' Alle- gheny, 2 Pitts. 417 ; Comm. v. Floyd, 1863, C. P. Allegheny, 2 Pitts. 342, 422. Warrants— Mandamus to compel signature— Discretion of control- lers. — Comm. V. Lyndall, 1868, C. P. Phila., 2 Brewst. 425. Mandamus lies to compel a city controller to sign a warrant. Runkle v. Comm., 1881, 10 W. N. C. 213, 38 L. Int. 309. A controller of a city of the third class is not a mere ministerial officer, but possesses dis- cretionary powers. Mandamus will not lie to compel a reversion or modifi- cation of his decision in refusing to countersign a warrant. Comm. V. Page, 1883, C. P., 16 Phila. 49, 40 L. Int. 394. A mandamus will not lie to compel the controller of Philadelphia to countersign a war- rant for the salary of a magistrate where the latter has received moneys under color of his office which he claims a right to retain, but which should have been paid into the city treasury pending the ascertainment of their proper ownership. Comm. V. Dechert, 1885, C. P., 16 W. N. C. 508, 43 L. Int. 448. A city controller has no discretionary power to refuse to countersign a warrant au- thorized by ordinance to be drawn for a specified piece of work upon a speci- fied item in an appropriation. He is compelled by mxmdamus to sign such a warrant. Beversed, 3 Am. 229. Same— Refusal of countersignature— Enforcement of claim with- out countersignature— Severability of contract— Rescission.— Phila- delphia V. Beekley, 1886, 18 W. N. C. 53. A claim under a contract may be enforced against the city of Philadelphia upon a waiTant not countersigned by the controller, where the latter has refused to countersign without as- signing any reason for such refusal. Where it is stipulated that a contractor with the city of Philadelphia shall receive periodical warrants upon the city treasurer, as the work under the contract is performed, the contract is servable ; and the refusal of the con- troller to countersign such warrants without assigning any reason for such refusal, is a breach for which such contractor is entitled to rescind : Affirm- ing 42 L. Int. 257. Same— Warrant is prima facie legal— Action.— Lackawanna Valley Bank v. Scranton, 1879, C. P. Lackawanna, 1 Lack. Leg. Rec. 393, A war- Part J I.} CONTEACTS— COKPOEATIONS. 427 rant drawn upon the treasurer of a city of the third class hy the mayor, countersigned hy the controller, is prima facie legal and binding, and a suit may be maintained thereon. Same— Gas company— Action of debt.— Scranton v. Hyde Park Gas Co., 1883, 6 Out. 382. An action of debt will lie upon a city warrant drawn by the mayor and countersigned by the controller upon the treasurer of a city of the third class, for the payment of the consideration of a contract be- tween the city and a gas company for supplying gas to the city lamps, di- rected to be paid for account of gas and water appropriation. Same— Indorsement — ^Parties to action. — Lackawanna Valley Bank V. Scranton, 1879, C. P. Lackawanna, 1 Lack. Leg. Rec. 393. City warrants, though negotiable, as commercial paper is, may be transferred validly by in- dorsement. When they are so indorsed a suit upon them is properly brought in the name of the payee to the use of the indorsee. Same — ^Iiyimction to restrain pajnnent — ^Dlegal issue.— Boies v. Scranton, 1879, C. P. Lackawanna, 1 Luz. Law T., N. S. 54, 1 Lack. Leg. Eec. 261. An injunction will be granted to restrain a municipal corpora- tion from paying city warrants in the hands of the original payees where such orders have been illegally issued, or in pursuance of an illegal and void ordinance and contract. Their payment will not be restrained, how- ever, in the hands of bona fide indorsees for value. Interest on warrants. — Boustead v. Penn District, D. C, 1 Phila. 180. A municipal warrant bears interest only from the time of presentment and refusal of payment. Scranton v. Vail, 1877, C. P. Luzerne, 6 Luz. Leg. Reg. 237. Interest does not run on city orders after demand and non-payment for want of funds. The municipal authorities cannot authorize the payment of such interest by ordinance. Lackawanna Valley Bank v. Scranton, 1879, C. P. Lackawanna, 1 Lack. Leg. Eec. 393. City warrants do not bear interest unless it clearly appears that such is their character and that the municipality had power to make them so. The legality of the payment of interest upon them cannot be es- tablished by custom. Negotiability. — Craig v. Richmond, 1 D. C, 1 Phila. 33. A municipal warrant was negotiable before the Act of April 21, 1849. That act was prospective. COIVTRIBUXORlf PIEGLIGEBICE. See Negligence. CONTROI^LER. See Officers. Bights and duties in countersignature of warrants, see Contraiits. CORPORATIOP7S. Private, see Private Corporations in their Relations with Municipalities. 428 cosTs^couNciLS. [Part //. COSTS. Upon appeal from award, see Appeal. COUNCILS. Discretion of, in assessing cost of municipal improvements upon property bene- fited, see Assessment Etc. Authorising' mayor to state account, see Accotini. Clerks of,in Philadelphia, contracts by, for printing, see Contracts, II. Mandamus to, to compel payment of interest on municipal bonds, see Subscription Etc. Presumption of consent to laying out of streets, see Streets. Organization— Election— Injunction.— Volroth v. Dunn, 1878, C P. Luzerne, 7 Luz. Leg. Reg. 223. An injunction tvIU lie to restrain interfer- ence with the organization of a municipal body having a, prima fade title, by another body claiming to have been duly elected. Same— Division— Test for determining which is the legal body- Proceedings.— Kerr V. Trego, 1864, 11 Wr. 292. On the division of a body that ought to be a unit, the test by -which to determine vphich of the divis- ions represents the legitimate social succession, is in ascertaining which of them has maintained the regular forms of organization according to the laws and usages of the body. In the case of municipal corporations the action of the Attorney General is not necessary for the institution of proceedings to determine which party is the legal body. See also Bonton v. Eoyce, 1874, 31 L. Int. 21, afarmed in 31 L. Int. 252. Jurisdiction to pronounce on qualifications— Act of May 24, 1887.— Auchenhach v. Sewert, 1888, 21 W. N. C. 349. The courts of quarter ses- sions have no jurisdiction to pronounce upon the qualifications of a muni- cipal councilman to hold that office. Such jurisdiction is not included in the jurisdiction over contested elections. The Act of May 24, 1887, vests the power to judge of qualifications in the branch of the municipal council to which the person may be elected. Bight of burgess to sit as member of council.— Comm. v. Kepner, 1873, C. P. Schuylkill, 30 L. Int. 312, 1 Leg. Chron. E. 265. The burgess of a borough subject to the Act of 1851, has no right to sit as a member of- the council. He cannot refuse to sign an ordinance on the ground that he was not present as a member when it was passed. See contra Price c Beale, 1877, C. P. Chester, 34 L. Int. 243, holding that Sec. 8 of the Act of 1834 is still in force. Same— Holding over after expiration of term— Injunction — Lavelle V. Phillips, 1881, C. P. Luzerne, 3 Luz. Law T., N. S., 169. Upon the prayer of members of a municipal council an inj unction will be granted to restrain a number of members of the council from holding over after their terms of office have expired, and conspiring with others, not legally elected members, to interfere with the legal organization of the council. Quo -warranto- Office of councilman a town office.— Comm. r. Bunn, 1874. C. P. Phila., 31 L. Int. 340. The office of councilman is a town office within the meaning of the Act of Assembly conferring on courts of common pleas quo warranto jurisdiction in matters of public office. Part/7.] COUNCILS. 429 Same— Who entitled to writ— Claimant of seat.— Comm. v. Bumm, 1874, C. P. Phila., 31 L. Int. 340. A citizen who claims a seat in a muni- cipal council by election, in place of one who has removed from the ward for which he was elected, has a sufS.cient interest to entitle him to a writ of quo warranto to determine the question of forfeiture. See also Comm. t. Shepp, infra. Filling vacancy— Holding over for full term— Act of April 11, 1876. — Comm. V. Krigbaum, 1883, 0. P. Lackawanna, 6 Lnz. Law T. 13. The 19th section of the Act of April 11, 1876 (P. L.27), provides for special elec- tions to municipal councils for the filling of vacancies occurring during a term, and a person elected thereunder caimot hold for a full term. Member's speecb is privileged communication— Libel.— Comm. v. Smethurst, 1883, Q. S., 40 L. Int. 446. A speech made by a member of a municipal council in reference to a measure pending before the council, is a privileged communication, and the member is not guilty of libel in making an adverse criticism upon an individual to whom it is proposed that the city shall grant important municipal privileges, unless express malice be proved. Special services by councilman— Compensation— Mandamus.— Comm. u. Lancaster, 1836, 5 Wts. 152. Where a city charter by a fair con- struction indicates an intention that services by members of the common council shall be gratuitous, a mandamus will not be awarded to compel the mayor tu issue a certificate of loan to a councilman for special services by him in that capacity, although a resolution has been passed by the councils directing the mayor so to do. Election of two branches — City of third class. — Phoenix v. Reynolds, 1877, C. P. Luzerne, 13 Phila. 522, 34 L. Int. 59, 8 Lane. B. 149. A city of the third class incorporated before the passing of the act of Assembly dividing the cities of the Commonwealth into classes, and which then had its legislative power vested in a single council, was not compelled by said act to elect thereafter a council of two branches. The provision of that act, respecting the election of two branches, is permissive not compulsory. Mandamus to compel election of officers by councils— Fraud in or- ganization of other branch. — Lamb v. Lynd, 1863, 8 Wr. 336. Mandamus lies to compel the select council of a city to elect municipal officers whose election is the duty of the councils under the charter. It is not a valid reason for refusing to proceed with such election, that members of the com- mon council may have been fraudulently retained and others fraudulently excluded, each branch being the sole judge of the qualifications of its mem- bers ; nor that they are about to propose a change in the law. Pittsburgh— Appointment of night policemen. —Comm. v. Pittsburgh, 1850, 2 H. 177. The right of appointing night policemeo for the city of Pittsburgh belongs to the council of that city and not to the mayor. Interest of councilman in contracts with municipality— Act of May 23, 1874.— Dunlap v. The City, 1883, C. P., 13 W. N. C. 98. The fact that a member of the city council is an employ^ of a contractor with the city, does not render the contract void, under the Act of May 23, 1874, wheie such member merely receives a fixed salary from such contractor. Same— Act of March 31, 1860— Quo Warranto.— Comm. v. Grover, 1882, C. P. Chester, 2 Kulp, 232, 11 Luz. Leg. Reg. 311, 1 Chest. Co. 477. A writ of quo warranto to oust from office councilmen who have forfeited their office by violating the Act of March 31, 1860, providing for such for- feiture by councilmen interested directly or indirectly in the furnishing of supplies to the municipality etc., vrill not be issued upon the petition of taxpayers who have no interest other than that of all citizens. Same— Borough— Chief burgess may proceed.— Comm. v. Shepp, 1873, C. P. Schuylkill, 30 L. Int. 381, 1 Leg. Chron. R. 325. The chief burgess of a borough has the right to proceed by quo warranto to oust a coun- cilman for being interested in a contr.ict to furnish supplies to the borough. 430 COUNCILS— CE0SSIN6S. [Part- II. Same— Plea.— Comm. v. Shepp, 1873, C. P. Schuylkill, 30 L. Int. 381. A councilman who in quo warranto proceedings is charged with being inter- ested in contracts to furnish supplies to the municipality, must in his plea disclaim or justify. COUNTERSIGIVAXURE OK ^WARRANTS. Bee Contracts. COVP9XIES. Actions against, see Action and Suit. Liability to pay damages for property taken under the power of eminent domain, see Eminent Domain. Liability for negligence, dviy to repair bridges etc., see Negligence. Have no power to legislate, see Powers Etc. covxxv commissioNERs. See Commissioners. COVPOXS. See Debts and Bonds. CREATIOI« OK MUPiXCIPAL CORPORATIONS. See Incorporation Etc. CRIMINAL OKKENCE. Embezzlement by clerks of Philadelphia Gas Trust, see Officers. Neglect of duty by officer, see Id. Indictment for breach of ordinance, see Ordinances. CROSSINGS. See Streets. Duty of municipality to construct wJtere street is opened over railroad, see Pri- vate Corporations Etc. Part J/.] CULVEETS— DEBTS AND BONDS. 431 CUI, VERTS. See Sewers, Negligence C17RBIXG. Assessments for costs of see Assessment Etc. DAMAGES. See Eminent Domain, Negligence, Contracts. Caused hy riots, see Mobs and Riots. DEBT, ACTION OF. See Action and Suit. DEBTS AXD BOI«(DS. See also Contracts, Subscriptions in Aid of Private Corporations, Action and Suit, Assessment Etc. Mandamus to compel levy of tax for payment of municipal debts, see Assessment Etc. Taxation of municipal bonds, see Assessment Etc. , IV. Assignment of debts owing by municipalities, see Assignment. AUachment of debts owing by municipalities, see Attachment. General power to incur debts and issue bonds.— Williamsport v. Comm., 1877, 3 Nor. 487. A municipal corporation has an implied power to issue its bonds to any necessary extent for debts lawfully contracted for a legitimate municipal purpose, notwithstanding a supplement to its charter authorizing it to borrow money and issue bonds for such purpose, not ex- ceeding a certain amount. See also S. C, 36 L. Int. 365. Comm. V. Pittsburgh, 1859, 10 C. 496. A municipal corporation's power to borrow money includes the power to issue bonds to the lender. See also Comm. V. Commissioners of Allegheny, 1860, 1 Wr. 237 ; Comm. v. Commis- sioners of Allegheny, 1860, 1 Wr. 277. Issue of small notes— Act of April 12, 1828.— Allegheny City v. Mc- Clerkan, 1850, 2 H. 81. Municipal corporations are within the Act of April 12, 1828, prohibiting the issue of small notes. Debt incurred for construction of common sewers.— Parrish v. Wilkesbarre, 1882, C. P. Luzerne, 2 Kulp, 182, 11 Lnz. Leg. Eeg. 241. The power of a municipality to ordain and construct common sewers, whenever the general health or deanliness or other public and common necessity re- 433 DEBTS AND BONDS. [Part II. quire the same, is to be implied in a grant of power to lay out and enact the same, to regulate the streets, and especially in the power ' " to make such regulations as may be necessary for the health and cleanliness of the city." And such a power implies the power also to incur indebtedness tor such purpose, to pay such indebtedness out of funds raised by general taxa- tion for city purposes, and to issue bonds therefor. Debt for erection of free bridge.— Philadelphia v. Field, 1856, 8 Sm. 320. The Legislature may constitutionally provide for the erection of a free bridge within the limits of a municipal corporation, appointing commis- sioners to supervise its erection and to create a loan for the purpose, and requiring the city councils to provide for payment of such loan and the in- terest upon it. Limitation of taxing power does not measure power to contract debts.— Emerson v. Blairsville, 1859, 2 Crum. 39, 7 Pitts. L. J. 75. A limit- ation on the taxing power of a municipality is not equivalent to a prohibi- tion to contract debts ; and the creation of a debt will not be restrained by injunction, although amounting to more than the municipality can lawfully raise by taxation at one time. Increase of debt beyond legal limit— Iiyunction by taxpayers.— Matthews v. Scranton, 1878, C. P. Luzerne, 7 Luz. Leg. Eeg. 127. The of- ficers of a municipal corporation will be enjoined at the instance of a citi- zen and taxpayer from assessing and levying a tax beyond the limit fixed by law, and from increasing the municipal indebtedness beyotd that limit. Sank V. Philadelphia, 1871, 4 Brewst. 133. 8 Phila. 117. Taxpayers may maintain a bill to enjoin action under a void ordinance providing for an in- crease of the municipal debt. Bergner v. Harrisburg, 1867, C. P. Dauphin, 1 Pear. 291. A bill for an injunction may be maintained by a taxpayer merely as such to restrain an illegal expenditure of public moneys by municipal authorities. Same— Duty of officers as to assessment of taxes. — ^Brown's Appeal, 1886, 17 W. N. C. 42, 43 L. Int. 239. The officers of a municipality are not bound to look behind an assessment duly made upon property within the limits of the municipality, for the purpose of determining the taxability of certain articles included in such assessment, and the consequent constitu- tionality or unconstitutionality of a proposed increase of the municipal in- debtedness. Constitutional limitation of municipal indebtedness.— LewU v. Jeff- ries, 1878, 5 Nor. 340. The increase of a corporation's indebtedness which is prohibited by Article XVI, Section 7, of the State Constitution, and the Act of April 18, 1874 (P. L. 61), pursuant to said section, means an increase of indebtedness beyond that allowed by laws existing at the time'of the adoption of the Constitution and of the enactment of the act : Reversing 33 L. Int. City of Erie's Appeal, 1879, 10 Nor. 398. Where the indebtedness of a city exceeds the constitutional limit, it cannot validly incur a new debt on the ground that it is authorized by the Legislature to perform the public work for which such debt is contracted, nor on the ground that the proposed indebtedness is not a bonded one. The constitutional inhibition extends to all indebtedness. Pike County v. Rowland, 1880, 13 Nor. 238. A municipal corporation which was in debt at the time of the adoption of the Constitution of 1874, may without a popular vote create new debts up to the constitutional limit of two per cent, whether that limit be exceeded by the sum of the old and new debts or not. See also Parrish v. Wilkesbarre, 1882, C. P. Luzerne 2 Kulp, 182, 11 Luz. L. Eeg. 241. Booth V. Weiss, 1881, 15 Phila. 159, 38 L. Int. 251. Where a debt in- curred by a municipal corporation which has already passed the constitu- tional limit, pertains to its ordinary expenses, and its annual revenues are sufficient over and above the interest on its indebtedness and its other ordi- Part 11.'] DEBTS AND BONDS. 433 °*^?!''?P'?®^'.*°^®^* *^^ proposed obligation as it unlawfully accrues such debt IS not within the constitutional prohibition """""^ accrues, Wilk^barre's Appeal, 1885, 13 Out. 554, 16 W. N. C. 484. A municipal corporation cannot increase its debt to any extent within the maximum of seven per cent, upon the assessed valuation of its taxable property by suc- cessive increases each of less than two per cent., without first obtaiuinff the assent of the electors at a public election, as provided by Article IX Section 8, of the Constitution. Any increase which would bring the aggregate in- debtedness beyond two per cent, must be submitted to the electors See note in 16 W. N. C. 507. As to the liahUHy far expenses of such elections, see Elections. Wilkesbarre's Appeal, 1887, 19 W. N. C. 408, 1 Crum. 246. A municipal- ity in levying taxes for the gradual extinguishment of its debt under the provisions of the Constitution of 1874, and the Acts of April 20 1874 May 23, 1874, and March 3, 1877, is not restricted to a limit of taxation pre- scribed by Its charter. Such a tax may be levied in addition to the other taxes. And it is not limited to municipal indebtedness ouistanding at the time of the adoption of the Constitution of 1874. Wheeler v. Philadelphia, 1875, 27 Sm., 338. The Act of April 20 1874 regulating the indebtedness of municipal corporations, is constitutional. ' Bonds issued for debt exceeding constitutional limit.— Millerstowu V. Frederick, 1886, 44 L. Int. 168, 4 Am. 435. Municipal bonds issued for a debt exceeding the constitutional limit aje void, though negotiable in form and in the hands o{ bona fide holders for value. But where the provisions of the Act of April 20, 1874, providing for the filing in the oflSce of the clerk of the court of quarter sessions of certain statements respecting the municipal debt have been complied with such holders are not to be considered as bona fide. ' Bonds issued under Act of May 8, 1876— When illegal.— Scranton v. Vail, 1877, C. P. Luzerne, 6 Luz. Leg. Eeg. 237. Bonds issued by a muni- cipality under the Act of May 8, 1876, relating to the refunding of muni- cipal indebtedness evidenced by bonds, certificates or notes issued prior to April 20, 1875, are illegal and void when issued for debts incurred after that date or for "expected liabilities." Bonds issued for unlawful purpose— Rights of holders.— Kerr. v. Corry, 1884, 9 Out. 282. A bona fide holder for value of municipal bonds authorized by act of Assembly to be issued for a lawful municipal purpose is not deprived of his right of recovery thereon against the municipality by the fact that the bonds were issued to his vendor for an unlawful purpose. Signature by officers individually.— Heidelberg v. Horst, 1869, 12 Sm. 301. A municipality is liable upon an obligation whose issue it has author- ized for a proper purpose, notwithstanding that it is signed by its officers as individual^. The signing officers are not individually liable. Motives in authorizing issue immaterial— Payment of considera- tion to receiver instead of treasurer. — Freeport v. Marks, 1868, 9 Sm. 253. A municipality is liable upon an obligation issued, without fraud, under its corporate seal and for a consideration which actually passed to it, irrespectively of the motives of the members of the municipal council in authorizing its issuance, and notwithstanding that the consideration was paid to a receiver specially appointed by the municipality instead of to the corporation treasurer. Mandamus to compel issue of bonds for construction of water- works. — Ackerman v. Bnchman, 1885, 13 Out. 254. A mandamus will not be issued at the instance of water commissioners to compel a town council to issue bonds to raise money for the construction of municipal waterworks, 28 — MURPHY. 434 DEBTS AND BONDS. [Part II. unless the council has been furnished with an estimate of the amount re- quired to prosecute the work, and a due requisition for the specific sum so required in order that it may determine whether or not the current reve- nues are sufficient to meet the expense. Mandamus to compel application of money to payment of over- due interest on bonds.— Williamsport v. Comm., 1879, 9 Nor. 498. Man^ damus will lie to compel the treasurer of a municipal corporation to apply public money in his hands to the payment of over-due interest upon its bonds, although such money has been appropriated by the city council to other purposes, provided such payment will not embarrass, much less stop, the wheefe of the municipal government. Members of municipality not personally liable for debts.— North Lebanon v. Arnold, 1864, 11 Wr. 488. Members of a municipal corporation cannot be held personally liable for the corporation's debts ; the only method of compelling payment is by mandamus for a tax. Sale of bonds below par— Commission for negotiation.— Scranton v. Tail, 1877, C. P. Luzerne, 6 Luz. Leg. Eeg. 237. A statute which provides that municipal bonds shall not be sold at less than par, is violated by the payment of a commission for the negotiation of the bonds. Schmertz v. Pittsburgh, 1884, C. P. Allegheny, 41 L. Int. 105. Where an act of Assembly provides that municipal bonds shall not be sold below par, the act is violated by a sale at par with an allowance of a discount to the purchaser as a commission for negotiating the purchase, although the act provides for the allowance of a reasonable compensation for the negotiation of the bonds. Wheelan's Appeal, 1885, 43 L. Int. 4, 33 Pitts. L. J. 106, 119. Under a statute authorizing an issue and sale of bonds by a municipality, providing that they shall not be sold at less that par and accrued interest, but permit- ting the allowance of a reasonable commission for their negotiation, such a commission will not be allowed to parties claiming to have acted as selling agents, but who are in fact purchasers of the bonds directly from the muni- cipality. And where such sale is made at par and accrued interest only while the bonds are at a premium, it will be annulled. Coupons— Presentment— Eights of holders.— Williamsport f. Comm., 1879, 9 Nor. 498. A municipality cannot compel those who duly present for payment the coupons cut from its bonds to give the numbers of the bonds and a history of their claims of title thereto in order that it may be ascertained whether or not the municipality has any specific defence against their payment. Resolution to issue bonds must be DubUshed.— Parrish ». Wilkesbarre, 1882, C. P. Luzerne, 2 Kulp, 182, 11 Luz. Leg. Eeg. 241. A resolution of a municipal council, providing for the issue, sale and redemption of bonds is in effect an ordinance ; and where the charter provides that ordinances must be published, such a resolution must be published. Bonds purchased with sinking fund tax— Taxation of.— Comm. v. Reading, C. P. Dauphin, 1880, 15 W. N. C. 529. Municipal bonds which have been purchased by the municipality with the sinking fund tax pro- vided by the 11th section of the Act of May 23, 1874, are not subject to the State tax of three mills on the dollar provided by the 32d section of the Act of AprU29, 1844. Ultra vires purchase of debt by corporation.— Jenkins Township «. Yatesville Borough, 1880, C. P. Luzerne, 9 Luz. Leg. Eeg. 229. The fact that the purchase by a corporation of debts ovring'by a township may be ultra vires, does not destroy the binding character of the debts. Part 7i.]' DELEGATION OF PO WEB— DISSOLUTION. 435 i>e;i.e;gaxiob( of po-wer. Of legislative power to municipalities : see Powers Etc. ; of power to authorize occupation of streets by private corporations, see Private Corporations Etc. DEBIAPID. As prerequisite of bringing suit against municipality, see Action and Suit. DEVISE. See Trust. DISCO VKX. In sale of municipal bonds, see Debts and Bonds. discrexion:. Of municipal officers : see Officers ; in award of contracts, see Contracts, III; of controller, in countersignature of warrants, see Contracts, IV. Of councils : in providing taxes to pay municipal debts, see Assessments Etc. ; in imposing cost of municipal improvement upon property owners, see Id. DISCRIiniP(AXIOI«. In imposition of cost of m/unieipal improvements, see Assessment Etc. DISQUAI^IFICATION. Of officers or Sectors, see Officers. DISSOLITTIO]^. See Incorporation Etc. 436 DIVISION — ELECTION'S. [_PaH II. DIVISION. Of municipalities, see Incorporation Etc. DOCKS. See Wharves, Negligence. DOCVBIEPfTS. Mandamus to compel suspended officer to deliver, see Officers. ELECXIOKS. Of officers, see Officers and Agents. Of councilmen, see CouncUs. For or against increase of municipal debts, see Debts and Bonds. Acts of April 16, 1875, and May 1, 1876— Elections for or against eas and water taxes etc.— Ballots— Constitutionality.— Barrett's Ap- peal, 1887, 19 W. N. C. 519, 1 Oum. 486. The Act of May 1, 1876, pur- porting to be a supplement to the Act of April 16, 1875, prescribing the character of ballots to be cast at municipal elections for or against gas, water and similar taxes, is unconstitutional, in that it refers only in its title to the Act to be amended. An election held in accordance with the provisions of the Act of 1876, instead of the Act of 1875, is' therefore void. Liability for election expenses— Elections for or against liauor licenses.— Dalzell v. Allegheny, 1873, C. P. Allegheny, 20 Pitts. L. J. 129. A municipality is liable for the expenses of an election upon the question of liquor license where the election occurs upon a day not fixed for any ordi- nary municipal election. Same— Elections for or against increase of municipal debt.— Wilkes- barre v. Luzerne County, 1876, C. P. Luzerne, 5 Lnz. Leg. Keg. 75, 2 Luz. Law T. 44. A county is liable for the statutory per diem of the judges, in- spectors and clerks of all elections, municipal and general, held in munici- palities within the county, except in the single instance of an election, not held on the day for the municipal and general election, to determine whether or not the indebtedness of the municipality shall be increased. See also Gaskins v. Montour County, 1879, C. P. Montour, 8 Luz. Leg. Reg. 270. Fart 17.] eminent bomain. 437 E;]IIII«E?fX DOMAIN : THE XAKING OR IXJVR- ING OF PRIVATE PROPERTY IN THE CON- STRITCXION OR AI^XERAXION OF BIGH^V^AYS OR OXHER PUBLIC \. Lower Towameusing, 18S3, C. P. Carbon, 2 Lane. Law Rev. 3. A township is not required by Article XVI, Section 8, of the new Constitution to make compensation or give security for the value of materials taken by a super- visor from adjoining land for the construction or repair of a road. Vacation of street.— McGee's Appeal, 1887, 44 L. Int. 241, 4 Am. 470. The vacation of a street is not a taking of private property for public use for which a municipality is liable to make compensation. Ordinance authorizing entry on private property must provide for compensation.— Strasburg v. Bachman, 1888, 21 W. N. C. 462. An ordi- nance authorizing the municipal street committee to enter upon any lot of the municipality for the purpose of cutting or opening drains or ditches and keeping the same in repair, but making no provision for the ascertainment and prepayment of damages to the owner, and founded upon no statute making such provision, contravenes Article XVI, Section 8, of the State Constitution and is void. Opening street— Question of injury— Submission to jury.— Snyder ». Lancaster, 1887, 20 W. N. C. 184, 4 Lane. L. Eev. 391. Under the facts of this case held that the question whether in the opening of a street conse- quential injury had been inflicted on the plaintiff's house should have been submitted to the jury. Deviation from street plan before final adoption.— Beading v. Kep- pleman, 1869, 11 Sm. 233. An act of Assembly providing for a survey and the establishment of a permanent plan for the streets of a municipality is prospective in its operation, and the municipal authorities cannot be held liable for a deviation from such plan before its completion and final adop- tion. Grade of highways— Change of— Act of May 24, 1878.— Charlton v. Allegheny, 1855, 1 Gr. 208. A municipal corporation is not liable for inju- ries arising from its establishment of a particular grade for any of its streets. Folkenson v. Easton, 1887, 16 W. N. C. 561. 1 Crum. 523. Damages can- not be recovered under the Act of 1878 for a change of grade made prior to the adoption of the present Constitution. Beck V. Bethlehem, 1886, C. P. Lehigh, 3 Lane. Law Eev. 386. The act of May 24, 1878, providing for the payment of damages for injuries inflicted by the change of the grade of streets in boroughs, is retrospective as well as prospective, and is constitutional ; but no proceedings under it can be commenced more than six years after its passage. Fegley u Easton, 1883, C. P. Northampton, 2 Lane. ±jaw Eev. 171, 2 C. C. E. 505, 2 Del. Co. 340. Neither the ordinary limitations nor that pre- scribed in the general road law applies to petitions under the Act of May 24, 1878, for the assessment of consequential' damages to private property caused by a borough's change of the grade of a road. Landes u. Norristown, 1888, 21 W. N. C. 212. A claim for damages for the change of the grade of borough streets, under the Act of May 28, 1878, is barred by the lapse of six years since the injury occurred. Part J7.] EMINENT DOMAIN. 439 Brady Street, 1882, 12 W. N. C. 120. The Act of 1878 does not give the common pleas jurisdiction over the assessment of damages fox the widening of borough streets where there is no change of grade. Zearfoss v. Lansdale, 1885, C. P. Montgomery, 1 Montgom. Co. 157. The mere mending of a road hy filling holes and slightly elevating and round- ing off the surfece, is not a " change of grade ' ' for which a borough may be liable in damages under the Act of May 24, 1878. Longstreth v. Phoenixville, 1883, C. P. Chester, 2 Chest. Co. 86. The Act of May 24, 1878, relating to the assessment of damages for changing the grade of a street is not limited to cases where the grade is first formally fixed by specific action and afterward changed, but applies as well where a street is laid out and opened on the natural surface, without the formal es- tablishment of a grade, and a different grade is afterward established. See also Lloyd v. Philadelphia, Brower v. Chester County, supra. Widening of Chestnut street, Phila.— Chestnut Street, 1888, 20 W. N. C. 54, 45 L. Int. 75. Under the statutes relating to the widening of Chestnut street in Philadelphia, the fact that an owner of abutting prop- erty is compelled to surrender a space five feet deep when he rebuilds, con- stitutes a taking of the owner's property for which he may recover damages, although the tearing down of the former buildings and the building of the new one are voluntary. Act done under legislative authority— Municipality's discretion— Consequential damages. — Malone v. Philadelphia, 1882, 2 Penny. 370, 12 W. N. C. 396, 39 L. Int. 179. A municipal corporation is not liable to an action for consequential damages to private property (unless it be given by statute), where the act complained of was done under a valid act of the Legislature, and there has been no want of reasonable care or reasonable skill in the execution of the power, although the same act is done without legislative sanction, would be actionable, and although by a different exer- cise of the municipal discretion in the execution of the power, the act &om which the damage resulted might have been avoided. Duty in use of property.— Shnter v. The City, 1858, 3 Phila. 228, 15 L. Int. 333. A municipal corporation is subject, in its use of property for pub- lic purposes, to the maxim Sic utere tuo ut aUenum non laldas. Permitting or obstructing flow of water— Culverts— Injunction.— Blitz V. Ashland, 1887, C. P. Schuylkill, 3 C. C. E. 412. Where no negli- gence is chained a court of equity will not enjoin a municipality from per- mitting the flow of an alleged excess of water through a culvert, whereby private property of the complainants is inj ured. Goulden v. Scranton, 1886, C. P. Lackawanna, 3 Lane. Law Rev. 340. A municipality which has not paid or secured compensation for the injury will be enjoined from constructing a culvert in such a manner as to cause an in- creased discharge of water upon a complainant's land. Mayor v. Randolph, 1842, 4 W. & S. 514. In an action against a munici- pal corporation for damages resulting from its obstruction of a flow of water while grading a street, the motives of the corporation in making such alter- ations in the grade cannot be inquired into ; the sole question is the au- thority of the corporation to stop the flow. Injunction to restrain work until damages are paid— Damages se- cured in taxing power. — Delaware County's Appeal, 1888, 21 W. N. C. 112. A party whose property is or will be injured by the prosecution of a public work by a municipality, e. g., by the rebuilding of a bridge, is not entitled to an injunction to restrain such work until damages are paid. Such damages are adequately secured by the taxing power of the munici- pality : Eeoersing 4 Lane. L. Rev. 122. Inadequacy of taxing power to secure damages— Opening streets- Injunction. — ^Keene v. Bristol, 1856, 2 C. 46. Where the power of taxa- tion of a municipal corporation is so limited that the amount of damages 440 EMINENT DOMAIN. [^Part II. likely to be occasioned to property by the corporation's opening of streets through it could not be paid from the public treasury within a reasonable time the corporation will be enjoined from opening such streets until ade- quate security is given. What may be taken— License from municipality.— Branson «. Phila- delphia 1864, 11 Wr. 329. A license of a municipality exercising a x>ortion of the State's right of eminent domain, takes the license subject to the right of eminent domain, and cannot object to such a further exercise of it by the municipality as will destroy the value of the license. Same— Taking well for public use— Barter v. Comm., 1831, 3 P. & W. 253. A municipal corporation has a right to open as a public well a well which was sunk in a public street thereof by a private individual at his own expense before the incorporation of the city. Remedies— When common law action will lie.— Lloyd v. Philadel- phia C. P., 1884, 41 li. Int. 428. Where no statutory remedy is provided by which a citizen may recover compensation for damage done to his prop- erty by a municipal corporation by the construction of a street in front of such property, an action on the case will lie. See Brower v. Chester Co., 1885, C. P. Chester, 1 C. C. E. 1. Same— Trespass— Illegal entry of supervisor.— Marshall «. Lower Towamensing, 1883, C. P. Carbon, 2 Lane. Law Rev. 3. An action of tres- pass quare elauswm fregit will not lie against a township for the illegal entry of a supervisor upon private property and the taking therefrom of materials to repair a road. Same— Trespass— Taking beyond authorized line.— White v. McKees- port, 1882, 30 Pitts. L. J. 233. The compensation provided for by the State Constitution for the taking of private property for public use cannot be re- covered in an action of trespass qiiare clausuni fregit brought against a mu- nicipality upon the supposition that the taking of the plaintiff's land ex- tended beyond the authorized line. Same— Jury trial — Appeal— Constitutional provision. — East Walnut Street, 1879, 9 Nor. 207. Section 8, Article XVI, of the State Constitution and the Act of June 13, 1874, secure an appeal and a trial by jury for dam- ages in all cases where private property is taken by a municipal corporation for public use. See also Towanda Bridge Co., 1879, 10 Nor. 216 ; Pusey's Appeal, 2 Nor. 67 ; Williams v. Pittsburgh, 2 Nor. 71. Same — Jurisdiction— Common pleas and quarter sessions— Cities of third class.— Spring Street, 1886, 2 Am. 258. Since the passage of the Act of 1874, dividing cities into classes, proceedings for the assessment of damages for the opening of streets in cities of the third class should be com- menced in the common pleas. But a city of the third class which has in- stituted and prosecuted to completion proceedings to ascertain such damages in the court of quarter sessions, will not be permitted to evade the payment of damages upon its own defence, based upon the jurisdictional defect ; the general jurisdiction of the quarter sessions is sufficient, and the municipal- ity will be compelled by mandamus to pay the amount of the award. Distribution of damages assessed.— Crangle v. Borough of Harrisburg, 1845, 1 B. 132. A municipal corporation has no concern with the distribu- tion of the damages assessed for the taking of land for public purposes ; where there are conflicting claim, the corporation may pay the money into court. Erroneous payment of award.— West Chester d. Apple, I860, 11 C. 284. If a municipal corporation pay the amount of an award against il. for dam- ages resulting from an act for which it was not liable, it can have no re- course against the actual wrongdoers, although notice was given to the latter to appear and defend in the original action. Lowering of grade causing water plus to become a nuisance— City's liability.— Scranton V. Catterson, 1880- 13 Nor. 202. A charter which gives fart 11.'] EMINENT DOMAIN — ENTERTAINMENTS, ETC. 441 a water company a right to place plugs in the streets gives it no right so to place them as that they become dangerous public nuisances. If such a com- pany places a plug in a street properly, but the city afterward lowers the grade of the street so as to cause the plug to become a nuisance, the city is liable for any damage resulting from its sufferance of such nuisance. EUPLOVEES. See Officers and Agents. EMPI.OYMEKIXS. Taxation or license of, see Assessment Etc. EXCROACHiaEXX. See Streets. ENGIIVEER. See Officers E^iXERXAIKIHE^XS APID PT7BLIC CELEBRA- TIONS. Bergner v. Harrisburg, 1867, C. P. Dauphin, 1 Pear. 291. A municipal corporation has not, without express legislative authorization, power to ap- propriate public money for the entertainment of distinguished visitors. Payment cannot be recovered for articles furnished for such an object upon the faith of an ordinance authorizing the expenditure. But it may lawfully appropriate compensation to extra police ofleers to serve upon the occasion of such a visit. Tatham v. Philadelphia, 1876, C. P., 2W. N. 564, 11 Phila. 276, 33 L. Int. 220. Long-continued usage may give to the legislation of a municipal corporation power to make appropriations for the extension of the hospitali- ties of the municipality to distinguished visitors or the appropriate celebra- tion of public events, although the sole warrant for such appropriation be found in a charter provision that the councils shall have full power to make such laws and ordinances as shall be necessary for the comfort and welfare of the city. Tagg V. Philadelphia, 1886, C. P., 18 "W. N. C. 79. A municipal corpo- ration has power, by its council, to appropriate money for a civic entertain- ment. 442 EQUITY— EXECUTION. IFart Jl. EQUITY. See Action and Suit, Injunction, 2Vtts<. ESTRAYS. See AnimeUs. EXCAVAXIOnS. In Streets, see Negligence. EXCMTSIVE PRIVILrEGES. Of private corporations in supply of light, heat etc., see Private Corporations Etc. EXECITXIOK. See also Attachment, Judgment. Parke v. Pittsburgh, 1854, D. C. Allegheny, 1 Cram. 218, 2 Pitts. L. J. 198. An ordinary execution cannot issue against a municipal corporation. A municipal corporation is a " public " corporation. Hodges V. Board of Revision Etc., of Scranton, 1881, C. P. Lackawanna, 4 Luz. Law T., N. S. 77. It 8ee?re« that in Pennsylvania an ordinary execu- tion cannot be issued against a municipal corporation. The proper writ is mmidamus execution. Monaghan v. Philadelphia, 1857, 4 C. 207. Cities are within the Act of June 15, 1834, providing a mode for enforcing the payment of judgments againstcounties and townships. A^. Ja. In the ordinary form cannot issue upon a judgment against a city; the writ must be a mandamus execution under the above act, and such writ must be directed to the city treasurer, whose duty it is to pay the judgments, in the order in which the writs are served on him, out of any unappropriated moneys in his hands belonging to the city, and if there are none such at the time of the service, out of the first moneys that shall come into his hands. Hewson v. Kensington, 1843, D. C. Phila., 1 Clark, 322. Form of man- damus execution. South Chester -v. HeiU, 1878, 35 L. Int. 242. Mandamus cannot issue until after judgment. Lackawanna Iron & Coal Co. v. Walsh, 1863, C. P. Luzerne, 3 Luz. Leg. Obs. 53. Municipal authorities may appropriate a reasonable amount of the proceeds of an annual tax to the necessary repairs of its roads and bridges, without rendering themselves liable for disobeying a tnandamus execution. See also Larimer v. Pitts Township, C. P. Allegheny, 3 Luz. Leg. Obs. 27 ; Comm. v. Commissioners of Allegheny, 1863, C. P. Allegheny, 2 Pitts. 417 ; Comm. v. Floyd, 1863, C. P. Allegheny, 2 Pitts. 342, 422. Betz V. Philadelphia, 1887, C. P., 21 W. N. C. 155. The provisions of the new charter of the city of Philadelphia, Article VIII, Sec. 3, relating to Part II.'] EXECUTION— FIEEI FACIAS. 443 the recovery of judgments against the city, are in conflict with Article III, Sec. 7, of the State Constitution, prohibiting the passage of special local laws. The Act of April 15, 1834, providing for mandamug execution is still in force. EXEiaPXIOI«. iSee Assessment Etc. BXPENDIXURBS. See Debts and Bonds. For civic entertainments, see Entertainments Etc. Appropriations, see Contracts, IV. extinguishihekt. Of municipal debt, see Debts and Bonds. EXTRA PAY. See Contracts, Officers. EAIRIHOITXT PARK CODHHISSIOP^ERS. As parties to aiytion, see Action and Suit. FEES. Official, see Officers. License fees, see Assessment Etc. EENCIXG. Of streets, bridges etc., see Negligence. FIERI FACIAS. See Execntum. 444 FINES — FBAME BUILDINGS. [Port //. See Ordinances and. By-laws. PIREARBIS. See Ordinances. FIRE COMPANY. Diversion of property of, see Private Corporatimis, VI. FIRE DEPARXMENX. Negligence of, see Negligence, I. FIRE PLVGS. Duty of water company to erect, see Private Corporations, IV. FOOT^ITALK. iSise Negligence. FOREIGN CORPORAXIONS. flise Private Corporations Etc. FORFEIXURE. Of office of councilman, see Councils. Of unused municipal powers, see Powers Etc. Of property, for breach of ordinances, see Ordinances, IV. FRAME BUILDINGS. iS^ Ordinances. Part I/.] FEANCHISES — GENERAL WELFAEB. 445 FRABICIIISES. See Pincers Etc. Of private corporations, taking of, by municipality, see Private Corporations Me. FRAUD. In municipal subscriptions in aid of piHvate corporations, see Subscriptions Etc. FROKXAGE. Assessments on basis of, see Assessment Etc. FVBiDIIVG OF MUBdCIPAI^ DHBTS. See Debts and Bonds. Taxation of bonds purchased with sinking fund tax, see Assessmait Etc., IV. GARlKISHinBXX. See Attachment. GAS. Companies, see Private Corporations Etc. Formation of company by municipality for gas supply, see Contracts, I. Trustees of Philadelphia gas works, liability to attachment, see Attachment. Emiezzlemant by employi of, see Officers, Etc. Explosion of gas, see Negligence. Pipes : power of municipality to lay in streets, see Streets ; laying of, by pnvaie corporations, see Private Corporations Etc. GENERAL IvAW^S. See ClaMifieation of Municipalities, Incorporation Etc. GEI9ERAL "(VEI^FARE. See Ordinances. 446 GEADE— HIGHWAYS. [Part II. GRADE. Of streets, change of, see Eminent Domain. Railway company cannot change, see Private Corporations Etc. I GRADING. Assessing cost of, see Assessment Etc. Contracts for, see Contracts. GRAPiXS. See Powers. Of powers and privileges to private corporations, see Private Corporations, I. GRAVEYARDS. Opening streets through, see Eminent Domain. GITARDIAI«S or TRE POOR. Of Philadelphia, contract with, for suj^lies, see Contracts, II. GUARDS. Upon highways and bridges, see Negligence. HARBORS. See Wluirves. HEALTH. See Ordinances, Nuisance, Sewers. HIGHWAYS. See Streets, Bridges, Eminent Domain. Defects or obstructions in, see Negligence. Part II.'] HOUSE EAILWAYS— INCOEPORATION, ETC. 447 HORSE RAII^W^AYS. See Private Corporations Etc. License fees for ears, see Assessment Etc. HOSPIXALS. Appropriations to, see Private Corporations Etc. HUCKSTERS. See Ordinances. ICE AND SNO^V. On streets, see Negligence. IIvLEGAL SEIZURE. For violation of ordinance, see Ordinances, IV. imPOUNDIBiO AIVI3IAI.S. See Animals. imprisonhienx. As punishment for breach of ordinance, see Ordinances. IMPROVEMENTS. Assessments to pay expense of, see Assessment, Etc. INCORPORATION, DISSOLUTION, CONSOLIDA- TION, DIVISIOIV, AND BOUNDARIES. Creating etc. more than one charter by one statute— Constitutional prohibition. — Moers v. Eeading, 1853, 9 H. 188. It seems that the pro- visioB of the Pennsylvania Constitution prohibiting the passage of any act 448 INCOEPOKATION, DISSOLUTION, CONSOLIDATION, ETC. {Part II. creating, renewing or extending the charter of more than one corporation does not apply to public corporations. And an act which increases the privileges or assigns new duties to more than one corporation, is not within the prohi- bition. Incorporation of boroughs— Act of April 3, 1851.— West Philadel- phia Borough, 1843, 5 W. & S. 281. Under the Act of April 1, 1834, a borough could not be erected from several distinct villages with large tracts of open farming country intervening. Borough of Sewickley, 1853, 2 Gr. 135. Under the Act of April 3, 1851, section 21, the court of quarter sessions had power to incorporate boroughs without regard to the population thereof ; and Borough of Blooming Valley, 6 Sm. 66, the discretion of the quarter sessions in granting incorporation is not subject to review. See also Blooming Valley Borough, 6 Sm. 66 ; Quakertown Borough, 3 Gr. 203. Comm. 0. Montrose, 1866, 2 Sm. 391. The Act of April 3, 1851, applies only to boroughs created after its passage. Little Meadows Borough, 1859, 4 C. 256. A borough cannot be created under the Act of April 3, 1851, where it does not appear that there is a town or village within the proposed limits, and that a majority of the freeholders therein petitioned for it. See also Little Meadows Borough, I860, 11 C. 335. Little Meadows Borough, 1860, 11 C. 335. A borough cannot be erected so as to include within its limits large tracts of farming lands surrounding a village. But see Blooming Valley Borough, 1867, 6 Sm. 66. Same— Jurisdiction, practice etc. — Taylorport Borough, 1888, 21 W. N. C. 533. The jurisdiction to grant incorporation to a proposed borough cannot be exercised in a case where it is doubtful whether a majority of the freeholders residing vrithin the proposed limits have signed the petition. The court cannot cure this want of jurisdiction by reducing the proportions of the territory so that there shall be a majority of those who are left. , Summit Borough, 1886, 4 Am. 362. In a proceeding to incorporate a borough, the certificate of the grand jury should set forth substantially that after a full investigation of the case the jurors found that the conditions prescribed by law had been complied with, and that they believe it expe- dient to grant the prayer of the petitioners. A mere endorsement of the word "Approved " upon the application is not a suflScient compliance with the Act of April 1, 1834. It need not appear that the petition was signed within three months im- mediately preceding its presentation. La Plume Borough, 1886, 34 Pitts. L. J. 59. A petition for the incorpo- ration of a borough under the Act of June 2, 1871, should be laid before the grand j ury as soon as it conveniently can be done. The record must show affirmatively that the names of the petitioners were signed within three months immediately preceding the presentation of the petition. This fact may be shown and made matter of record at any time before final decree. See also Osborne Borough, 5 Out. 284. Pennsburg, 1887, 2 S. MonDgomery, 3 Montgom. Co. E. 187. Upon ap- plication for the incorporation of a borough, the certificate of the grand jury need not be annexed to the application. Land used exclusively for farming purposes may he included within the limits of a proposed borough. Quakertown Borough, 1855, 3 Gr. 203. After the jurisdiction of the court of quarter sessions has attached, it cannot be ousted by the withdrawal of some of the petitioners. Warrior's Mark Borough, 1874, 31 L. Int. 317. After the grand jury has acted upon a petition for the incorporation of a borough, no further proceed- ings should be taken until the succeeding term of court. Lark's Petition, 1887, Q. S. Dauphin, 3 Montgom. Co. E. 137. There is no authority for the exclusion of the land of a single petitioner from the limits of a borough after the latter has been incorporated Part II.'] INCOEPOBATION, DISSOLUTION, CONSOLIDATION, ETC. 449 Boundaries— Low-water mark.— Gilchrist's Appeal, 1885, 13 Out. 600. The limit of a municipality bounded by a non-tidal navigable stream, unless express language to the contrary is used in the act of incorporation, is at low-water mark. The jurisdiction of the taxing power of a municipality so bounded, does not extend beyond the low-water mark. Cliange of boundaries by Legislature.— Smith v. McCarthy, 1867, 6 Sm. 359. The Legislature may enlarge, divide and change the boundaries of municipal corporations either with or without referring the question to the vote of the people. Judicial order changing corporate existence or limits.— Darby v. Sharon Hill, 1886, 2 Am. 66. Although the charters of municipal corpora- tions are not of the nature of contracts with the State, but are amendable or revocable at the arbitrary discretion of the Legislature, yet where their corporate existence and limits and alterations of the latter are regulated by general laws applicable to them all, such a corporation cannot be deprived of its existence as such or sufter a contraction of its limits by judicial order, except in accordance with the provisions of the general law. Extension of borough limits— Act of 1851.— Devore's Appeal, 1867, 6 Sm. 163. To warrant the borough authorities to extend the borough limits, under the Act of 1851, the existence of the requisite conditions must appear. The petition must have been signed by twenty freehold owners of the lands or parts of the lands to be annexed, and all of the petitioners must be resi- dents on those lands. Middleport Borough, 1872, Q. S. Schuylkill, 1 Leg. Chron. E. 3. Under the Act of 1851, the only method of enlarging the limits of a borough is by a borough ordinance, on the petition of twenty or more freehold owners ot adjacent lands. The provision.? of the Act of 1834 apply to only such bor- oughs as were incorporated under it. Consolidation.— Borough of Oil City V. City of Oil City, 1871, C. P. Ve- nango, 3 Leg. Gaz. 407, Leg. Gaz. Eep. 502. Where one municipal cor- poration is erected from several others by a statute which is silent as to the disposition of the property formerly belonging to the dissolved corporations, but which give to the officers of the new corporation control of the depart- ment to which such property belonged, the new corporation is entitled to such property, and the dissolved corporation to which it belonged cannot recover it. Wood V. Philadelphia, 1856, 3 C. 502. Where a municipal corporation plainti£f has been merged into another municipal corporation, and suit is brought in the name of both, the record may be amended by striking out the old name. Forfeiture of charter.— Comm. ». Pittsburgh, 1850, 2 H. 177. The charter of a municipal corporation is not liable to forfeiture for the usurpa- tion by one of the municipal functionaries of rights belonging to another. Division into wards or election districts. — Division of the Fifteenth Ward, 1874, 0. P., 11 Phila. 406, 32 L. Int. 346. The provision of the Act of May 28, 1874, relating to the division of wards in cities, providing that the report of the commissioners therein specified shall be made at the next term of court after its appointment, is directory merely. Their report will not be quashed upon the ground that it was made after such time. Strasburg Borough, 1884, Q. S. Lancaster, 2 Lane. Leg. Rev. 175. Under the Act of May 14, 1874, a petition for a review of a report of commissioners appointed to divide a borough into wards, will be dismissed when filed after the third day of the term next after that in which the report is pre- sented and confirmed nisi. Dickson City Borough, 1885, C. P. Lackawanna, 3 Lane. Law Eev. 179. In a proceeding to divide a borough into wards, under the Act of March 14, 1874, notice must be given, not only to the electors, but to the "inhabit- 29 MUEPHY. 450 lifCOEPOEATION, ETC. — INDIVIDUAL LIABILITY. [P. City, C. P. 1876, 2 W. N. C. 369. A municipal corporation is not liable for the loss of a runaway horse occurring by his falling from an opened drawbridge. Strengthof bridge— What degree necessary.— McCormick v. Wasli- ington Township, 1886, 2 Am. 185. A municipality is not bound to pro- vide bridges for its highways which shall be adequate for an unusual and extraordinary use, as for bearing an extraordinary weight. It is bound to provide only such bridges as will protect against injury in a reasonable and probable use of them, in view of the surrounding circumstances, such as the extent and nature of the travel and business upon the roads of which they form parts. Affirming 2 C. P. R. 127. See also Bishop v. Schuylkill Township, 1887, 20 W. N. C. 105. III. Se^v^ers and Drains. Defective construction— Liability in general. — Comly v. Philadel- phia, C. p. 1882, 11 W. N. C. 532. A municipality is liable for injuries caused by the negligent construction of a sewer. Vanderslice v. Philadelphia, 1883, 7 Out. 102, 13 W. N. C. 373, 40 L. Int. 172. A municipal corporation which builds a sewer is bound to build it properly and to maintain it in good condition ; negligence in the perform- ance of such duties renders the municipality liable in damages for injuries resulting therefrom. What capacity must be provided— Overflow.— Fair v. Philadelphia. 1879, 7 Nor. 309, 6 W. N. C. 534, 36 L. Int. 115. A municipality is not liable for damages resulting to private property from its failure to construct sewers of sufacient capacity to receive and pass all the surface water which accumulates along its line, provided the overflow of such water be not due to the construction of the sewers. See also Collins' Appeal, 12 Nor. 272, 8 Same— Extraordinary rainfall.— Can- v. Northern Liberties, i860, 11 C. 324. A municipal corporation is not liable for damages sustained by a citizen from an overflow in an extraordinary fall of rain, where the over- flow might have been prevented had the city constructed a system of sew- erage to carry it oif, although the corporation had power to construct such a system. See also Grant v. Erie, 19 Sm. 420 Part II.'} NEGLIGENCE. 463 Same— Error of judgment.— Kennedy v. Pittsburgh, 18fci3, 31 Pitts. L. J. 230. A municipal corporation is nut liable for damages sustained through au error of judgment in its officials iu providing a sewer insuficient to carry- off all the drainage and surface water flowing into it. Drainage of adjacent land upon changing grade of streets. — Broomal V. Chester, 1875, 1 W. N. C. 228, 6 Lane. B. 162. A municipal corpora- tion in raising ita streets to the grade established by law, is not bound to provide outlets under them for surlace drainage from adjacent lots. That a water-course once existed upon such a lot does not affect the liability of the city. If a nuisance is created by such a raising of a street the owner must remove it. Mayer v. Randolph, 1842, 4 W. & S. 514. In an action against a muni- cipal corporation for damages resulting from its obstruction of a flow of water while grading a street, the motive of the corporation in making such alterations in the grade cannot be inquired into ; the sole question is the authority of the corporation to stop the flow. Construction of sewer with natural water-course— Liability as to latter. — Munn V. Pittsburgh, J861, 4 Wr. 364. A city may connect its sewers with any natural water-course without incurring liability to keep such water-course open to its mouth ; the fact that the Commonwealth en- closed such natural water-course in a sewer does not change the city's lia- bility ; the.city would be liable for the fallingiuof such artificially enclosed water-course only in case it had been guilty of negligence in imprudently making a connection which would naturally bring about such an accident ; the fact that the city repaired the water-course is an evidence of the volun- tary assumption of the duty of maintaining it. Notice of want of repair— Duty to watch condition of sewers- Evidence. — ^Vanderslice v. Philadelphia, 1883, 7 Out. 102. Mere absence of notice that a sewer is out of repair does not necessarily absolve a muni- cipal corporation from liability for injuries resulting from the improper con- dition of the sewer. The municipality must exercise a reasonable degree of watchfulness over the condition of its sewers. It will be presumed to have knowledge of a patent defect after the lapse of a reasonable time for its ascertainment and removal. Notice of a latent defect is not properly brought home to a municipality by reporting it to a member of the city council. In an action against a municipal corporation to recover damages flowing from the existence of a defective sewer, evidence of the bad condition of the sewer near the place of the accident, when examined three years before the time of the accident, is admissible. IV. Streets. See also II. Municipality bound to repair— Neglect— Wilfulness.— Erie City v. Schwingle, 1853, 10 H. 384. A municipal corporation which is bound by its charter to keep its streets in repair, is liable for an injury resulting from its neglect to do so, whether such neglect was wilful or otherwise. Non-repair not excused by failure to provide tax.— Erie City v. Schwingle, 1853, 10 H. 384. A municipality cannot allege as an excuse of its non-performance of the duty to keep its streets in repair its failure to provide the tax necessary for that purpose. Duty to remove dangerous obstruction — ^Notice etc. — Fritsch v. Al- legheny, 1879, 10 Nor. 226, 8 W. N. C. 318, 37 L. Int. 16. It is the duty of a municipal corporation to remove a dangerous obstruction from its 464 NEGLIGBNCE. IPart II, streets after notice to its officers and the lapse of a reasonable length of time. Failure to do so renders it liable in damages for injury resulting from the existence of the obstruction. See also Farley v. Fbilaidelphia, 11 W. N. C. 136, 15 Phila. 290, 39 L. Int. 45. Dangerous nuisance not obstructing travel — Notice. — Norristown v. Moyer, 1871, 17 Sm. 355. A municipal corporation is liable for injuries caused by a dangerous nuisance in one of its streets, whether it had notice of the existence of the nuisance or not ; and it is not material that the nuisance was in such a part of the street as not to obstruct travel. General duty as to travel— Way— Contributory negligence.— Dean V. Scranton, 1875, C. P. Luzerne, 2 W. N. C. 467, 4 Lnz. Leg. Keg. 64, 2 Luz. Law Times, O. S. 94. A municipality having full control over its highways and bridges, and power to levy taxes for their maintenance and repair is bound to keep them in such order that the travel-way is without ob-structions or structural defects which endanger the safety of the traveler, and sufficiently level and smooth, guarded by railing wherever necessary, to enable persons, by the exercise of ordinary care, to travel with safety. But the rules of contributory negligence applies. Affirmed, 5 Luz. Leg. Eeg. 87. Duty in constructing highway— Constructing single instead of double wagonway. — Perry Township v. John, 1875, 29 Sm. 412. The original construction of a highway by a municipality is to be governed by the municipality's topography, p(>pulation and tax-paying resources. It is not negligence for a township, in constructing a road along a hillside by the bank of a stream, to make only a single wagonway, with convenient turn- outs, instead of a road which at every point would admit of two vehicles passing each other, where the construction of such a road would require very expensive blasting and excavation. Constructive notice— Patent defect. — ^Wilmore v. Scranton, 1882, 4 Luz. Law T., N. O. 93. A municipal corporation is liable for injuries aris- ing from patent defects in its highways, where they are so observable and have existed for such a time that the municipality is affected with construc- tive notice. Same — Latent defect. — Kapho v. Moore, 1871, 18 Sm. 404. A munici- pality upon which rests the duty to repair, is liable for injuries resulting from a latent defect in a highway or bridge, where such defect would have been discovered by proper inspection. Falling of liberty pole in street. — Allegheny v. Zimmerman, 1880, 14 Nor. 287, 37 L. Int. 366. A municipal corporation is not liable in damages for injuries resulting from the falling of a liberty pole in one of its streets in an unusually severe storm, when.it was so erected and maintained as to cause no reasonable apprehension of danger. The existence of a liberty pole in a street is not necessarily a nuisance, though it may be a partial obstruction. Grape vine hanging over road. — Crawford v. Aston Township, C. P. Delaware, 1 Del. Co. 254. It is negligence on the part of municipal au- thorities to permit a grape vine to hang in the form of a loop over a public road at such a height as to interfere with the tops of carriages of an ordi- nary height. Degreeof care required— Country road.— MonongahelaB. Fisher, 1886, 17 W. N. C. 56, 43 I.. Int. 298, 33 Pitts. L. J. 305. The rale as to the de- gree of care required of a municipality in the maintenance and repair of its paved and built up streets, cannot be used to measure its duty with respect ■ to the care of a country road. Defective crossing— Necessity of crossing immaterial. — Easton i'. Neff, 1883, 14 W. N. C. 206, 40 L. Int. 476, 31 Pitts. L. J. 405. In an action against a municipality to recover damages sustained by reason of a defect in a street crossing alleged to have been negligently constructed, it Part //.] NEGLIGENCE. 465 is error to sabmit to the jury the question whether the crossing was neces- sary. Abandoned turnpike within municipal limits.— Pittston v. Duffy, 1879, 1 Lack. .Leg. Kec. 370. A municipal corporation is bound to keep in a safe condition an abandoned plank road within its limits over which it has assumed a general supervision and control. See also Lower Windsor Township v. Gemmill, 1885, 16 W. N. C. 265. Failure to close vacated street.— Dougherty v. Philadelphia, C. P. 1877, 4 W. N. C. 287. The failure of a municipal corporation to close a street that has been vacated is not per se negligence. It is a question, for the jury whether it was negligence under the particular circumstances. Changing grade.— Allentown v. Kramer, 1873, 23 Sm. 406. A municipal corporatioif is not liable for consequential damages resulting from altera- tions in the grade of the streets. But is liable for negligence in the con- struction or repair of its public works. Overruling Allegheny County v. Rowley, 1849, D. C. Allegheny, 4 Clark, 379, 2 Am. L. Eeg. 307. Conemaugh v. Schnable, C. P. 1874, 1 W. N. C. 55. A municipal corpo- ration is liable in damages for iiyuries resulting from negligence in exca- vating a street for the purpose ol changing its grade. Plaintiff must show special injury.- Lloydu. Philadelphia, C. P. 1884, 41 L. Int. 428. Damages cannot be recovered for the negligence of a mu- nicipal corporation in permitting a highway to be in an obstructed and dan- gerous condition, unless the plaintiff shows special injury to himself. Same — Loss of business to owner of abutting property. — Gold v. Philadelphia, 1887, 5 Am. 184, 19 W. N. C. 135, 44 L. Int. 80. The fact that one citizen residing within the limits of a municipality is accustomed, by reason of proximity or other cause, to use one street more than others do, and therefore suffers a greater amount of damage by being deprived of the use of that street through the negligence of the city in failing to keep it passable, does not place him in the position of one who suffers special and peculiar injury by reason of such negligence, and he is therefore not entitled to recover damages for such negligence from the city. Affirmiag 15 W. N. C. 63. Duty to erect barriers or guards. — Pittston v. Hart, 1879, 8 Nor. 389. It is the duty of a municipal corporation to erect a barrier along the side of a narrow street which runs along the edge of an elevation twelve feet above a parallel contiguous railroad. See also Scott Township v. Montgomery, 1880, 14 Nor. 444. South Easton v. Eeinhart, 1883, 13 W. N. C. 389. A municipal corpora- tion is not liable for an injury occurring by reason of the exposed condition of one of its highways, rendered so merely by the exposed condition of ad- joining private property, and to obviate which the municipality would be compelled to trespass upon such property for the erection of guards thereon. Devlin v. The City, C. P. 1883, 13 W. N. C. 338. A municipal corpora- tion is not liable for injuries sustained by falling from a high sidewalk in a rural part of the city, where there is no evidence to show that the street was on the city plan or had ever been dedicated or opened, or that the side- walk had been built under authority of the municipality. Same — ^Runaway accidents. — Hey v. Philadelphia, 1876, 2 "W. N. C. 465. A municipal corporation is bound to place guards at a place where one of its highways would be otherwise unusually dangerous in case of a runaway accident. Reversing 9 Phila. 166, 31 L. Int. 12. Lehigh County v. Hoffert, 1887, 1 Crum. 119, 19 "W. N. C. 363, 44 L. Int. 365. A municipal corporation is not liable for injuries to a foot-passenger upon a public bridge, caused by the running away of a team of horses, on the ground that the only guard between the footway and the drive was a stone curb six inches high. Such an accident could not have been reason- ably foreseen as the result of failure to erect a higher barrier. 30 MUEPHY. 466 NEGLIGENCE. [_Part II. And the municipality ia not rendered liable by the fact that it failed to exercise a discretionary authority to construct footways in a manner which might have prevented the accident. West Mahanoy v. Watson, 1886, 2 Am. 574. When defective highway constitutes only remote cause of injury to runaway horses. See second ap- peal in same case, 1 Crnm. 344, and Gaughan v. Philadelphia, infra. Mumper v. Hazleton, 1879, C. P. Luzerne, C. P. Eep. 113. A municipal corporation is not responsible for injuries occurring from the running away of a team entirely beyond the control of the driver. Snow and ice. — McLaughlin 0. Corry 1874, 27 Sm. 109. A municipal corporation, though not liable for injuries arising from the general slipperi- ness of its streets, caused by the snow and ice, is liable for injuries result- ing from the accumulation of the snow and ice in ridges and hills which render passage dangerous and which it can prevent. Mauch Chunk v. Kline, 1882, 4 Out. 119. A ridge of ice or snow one and a half or two inches in height, lying between two parallel lines of flat stones forming a street crossing, is not a ridge or hill for damages flowing from the non-removal or prevention of which a municipal corporation is liable. Allegheny J). Gilliam, 1882, 30 Pitts. L. J. 461. Municipal corporations are bound to use ordinary care in keeping their streets safe for travel. But they are not required to make pavements safe for walking immediately after they become slippery. A foot passenger who diverges from the ordi- narily traveled part of a sidewalk and undertakes to pass along that part of it which is ordinarily taken up vrith hitching posts, stepping stones and other such obstructions, must exercise a greater degree of caution than if he were traveling in the commonly used part of the walk. Denhart v. Philadelphia, 1884, 15 W. N. C, 214, 40 L. Int. 366, 16 Phila. 47. A municipal corporation is not liable for injuries to a pedestrian caused by a fall npon snow and ice on the sidewalk of a highway, where the slip- pery and dangerous condition of the pavement could have been seen and avoided by the person injured. Boy coasting on street. — Stevenson v. Phcsnixville, 1880, C. P. Chester, 1 Chest. Co. 113, 12 Lane. B. 122, 2 Schuylk. Leg. Rec. 2. A municipal corporation is not liable for injuries occasioned by a boy coasting on one of its streets, although there is no ordinance prohibiting coasting at the place of the accident. Contributory negligence. — Whitehead v. Philadelphia, ia56, D. C. Phila. , 13 L. Int. 124. If a person uses a public highway or bridge which he knows to be unsafe for travel, he cannot recover for injuries occasioned thereon, al- though the municipal authorities had been notified of its dangerous condi- tion and neglected to repair it. Aitkins v. Providence Tovraship, 1861, C. P. Luzerne, 1 Luz. Leg. Obs. 219. A municipal corporation is liable in damages for injuries occurring through its negligent failure to repair a dangerous defect on one of its high- ways, where the injured person was not guilty of contributory negligence. In the absence of actual knowledge to the contrary, one who knew of a dangerous defect in a highway may presume, after a reasonable lapse of time, that the municipal authorities have repaired it. Lower Macungle Township v. Merkhoffer, 1872, 21 Sm. 276. A munici- pality is liable for injuries resulting from a dangerous defect in its high- ways, negligently left uncorrected, notwithstanding that the injured person might have avoided the accident by skilful driving. See also Aitkins v. Providence, 1 Luz. Leg. Obs. 219. Scranton v. Hill, 1883, 6 Out. 378. Where a foot passenger in a city in- tentionally turns aside from a street in search of a footpath over private property over which the city has no control, and in so doing falls from the end of a culvert situated several feet beyond the limits of the street, he can not recover damages from the municipality on the ground of negligence in omitting to erect guards along the street at the point where he turned off. Part ILJ NEGLIGENCE. 467 Erie ?>. Magill, 1882, 5 Out. 616. A foot passenger on the sidewalk of a city street, who, with full knowledge of a dangerous obstruction on the pave- ment, deliberately attempts to walk over it when he could have avoided it by a slight detour into the street, and who falls and is injured in passing over the obstruction, is guilty of contributory negligence, and cannot re- cover damages against the municipality. See also Erskine v. Philadelphia C. P. 1883, 13 W. N. C. 224, 40 L, Int. 232 ; Fleming v. Lock Haven, 16 Phila. 151. Nanticoke Borough v. Warue, 1884, 10 Out. 373. The mere fact that the dangerous condition of a street where an accident occurred was notorious, does not prevent one receiving injuries in such accident from recovering damages against the municipality in which the street lay, where such dangerous condition was unknown to the injured person. Altoona v. Lotz, 1886, 43 L. Int. 487, 4 M. 238. Where a defectively paved street is not in so unsafe a condition that a prudent man in the exer- cise of due care would not travel over it, it is not contributory negligence to travel over it with the care which a prudent man would exercise instead of over other routes which are also unsafe. Crescent Township v. Anderscgi, 1887, 4 Am. 643. A person who knows, or by exercising ordinary care would know, of a defect in a highway, and voluntarily undertakes to test it, cannot recover against the municipality for injuries sustained in the attempt. Mill Creek Township v. Perry, 1887, 20 "W. N. C. 359, 45 L. Int. 15. Un- der the facts of this case held that it was not error not to withhold from the jury the question of the plaintiff's contributory negligence. See also She- nandoah Borough V. Erdman, 1889, 21 W. N. C. 553. Kingston v. Gibbons, 1886, 34 Pitts. L. J. 388, 4 Lane. L. Rev. 173. Un- der the facts of this case held that the use of a defective public bridge by the plaintiff did not constitute contributory negligence. Remote and proximate cause. — Gaughan v. Philadelphia, 1888, 21 "W. N. C. 247. A municipal corporation is not liable because of an alleged dan- gerous obstruction in one of its highways where such obstruction was not the proximate cause of the accident for which damages are sought. See also West Mahanoy v. Watson, 1887, 1 Crum. 344, and the cases under this head generally. Contributory negligence of a third party not a defence. — Burrell Township v. Nucafer, 1887, 20 W. N. C. 321. That an injury to a trav- eler on a highway was caused by the combined effect of the unsafe condi- tion of the highway and the negligence of a tiiird person, e. g., in leaving an agricultural machine in an improper place on the side of the road, whereby a horse becomes frightened, is no defence to an action against the municipality which was bound to keep the highway in repair. Carlisle u. Brisbane, 1886, 3 Am. 544. The contributory negligence of a voluntary carrier, without compensation, is.no defence to a passenger's action against a municipality for injuries of which the partial cause was the municipality's negligence in permitting a dangerous obstruction in a high- way. North Manheim v. Arnold, 1888, 21 W. N. C. 218. Where objects ordi- narily calculated to frighten roadworthy horses are placed by private indi- viduals and suffered to remain in a public highway, they are to be regarded as defects in the road, and the municipal authorities, after due notice, are liable for injuries caused thereby. The fact that the object is placed upon the margin instead of upon the ordinary traveled part of the highway, is immaterial, if the latter is thereby rendered unsafe. 468 NEGLIGENCE. [Part //. v. miscellaneous. Explosion of gas. — Strawbridge v. Philadelphia, 1882, 2 Penny. 419, 13 Phila. 173, 36 L. Int. 276. A municipal corporation is not liable for inju- ries caused by the escape and explosion of gas from the public gas pipes, where there is no proof of negligence. Affirming 7 W. N. C. 537. Otto Township v. Wolf, 1884, 10 Out. 608. A small gas pipe located by a private individual in such a way that it was exposed at the bottom of a gutter in a highway, is not a defect so open and notorious as to be evident to all persons. Therefore the authorities of the municipality in which it was situated could not be held liable for damages resulting from the burst- ing of the pipe and an explosion of the gas, unless express notice of the de- fect were brought home to them. Kibele v. Philadelphia, 1884, 14 W. N. C. 393, 41 L. Int. 313. In an action against a municipal corporation for damages resulting from an ex- plosion of illuminating gas which has escaped from a defective gas main, evidence that a patrolman and others noticed the smell of the escaping gas in the street several days before the explosion took place, should be sub- mitted to the jury in order to determine the question whether or not the municipality, by an exercise of proper diligence, could not have discovered the defect in time to prevent the explosion, and should therefore be charged with constructive notice of the defect. Keeping waters in navigable condition. — Winpenny v. Philadelphia, 1870, 15 Sm. 135. It seems that where there is no express imposition of lia- bility by statute, a municipal corporation is not bound to keep the waters upon which it fronts, or which pass through it, in a navigable condition. See also Snyder v. Philadelphia, 1875, 28 Sm. 23. Non-repair of wliarf. — Pittsburg v. Grier, 1853, 10 H. 54. A municipal corporation is liable for damages to an individual resulting from its neglect to keep in proper repair a public wharf in its exclusive possession and con- trol ; and its liability is not discharged by the passage of an ordinance for the proper regulation of the wharf, when such ordinance is not enforced. Willey V. Allegheny, 1888, 20 W. N. C. 520. A municipality owning a wharf and charging toll for its use, is bound to the same measure of care in maintaining it as would be demanded of a private owner. Maxwell v. Philadelphia, 1870, D. C, 7 Phila. 137. The City of Phila- delphia is liable for damages occasioned by a projecting beam in one of the city wharves. License from city to use wliarf— Liability of city to licensee.— Alle- gheny V. Campbell, 1884, 1 Out. 530. A city granted a license to use a wharf belonging to it, upon payment of a stipulated monthly sum. It sub- sequently passed an ordinance authorizing a railroad company to lay its tracks along the wharf. The railroad company removed certain posts on the wharf used for the mooring of vessels and , deposited on the wharf piles of stones and debris. The licensee notified the city to replace the posts and remove the ddbris, but the city failed to do so. Upon a sudden rise in the river the licensee's property was damaged by reason of the debris and the absence of the posts. In an action against the city for the damage, held, that the mere license to use the wharf did not deprive the city of the con- trol and regulation thereof, and that, irrespective of any question which might arise between the city and the railroad company, the city was liable to the licensee. Loss of water supply— Damages.— Smith v. Philadelphia, 1876, 2 W. N. C. 481. In an action against a municipal corporation for damages re- sulting from the loss of water supply to houses of the plaintiflF, caused by the defendant's negligence, the plaintiflF can recover only the amount of the water rents paid by him for the time when the supply was deficient : he cannot recover for the loss of the rents of the premises. Pari I].] NEGOTIABILITY — OBSTEUCTIONS. 469 BJEGOXIABII^IXY. See Debts and Bonds, Subscription Etc. Of warrants, see Contracts, IV. KiBGOTIATIOX. Of bonds, see Debts and Bonds. NOTES. Issue of small notes by municipalify, see Debts and Bonds. KOXICE. Of defects or obstructions in streets, etc., see Negligence. In proceedings to incorporate or divide boroughs, etc., see Incorporation Etc. Of rule, service of, on municipality, see Service. NUISANCES. Ordinances defining nuisances, see Ordinances and By-laws. Liability of municipality in damages for existence of nuisance, see Negligence. License to occupy streets, see Streets. Abatement of, by mayor.— Fields v. Stokely, 1882, 11 W. N. C. 344. The mayor of a city may, as the conservator of the public peace and the protector of the citizens, abate a nuisance, whereby the lives, health and property of the citizens are endangered. But in such a case his official po- sition does not relieve him from the necessity of proving to the jury, in order to escape personal liability for the act, the fact of nuisance. Indictment— Employment of counsel by boards of health.— Smith V. Scrantou, 1886, C. P. Lackawanna, 3 C. P. Eepr. 82. Boards of health of cities of the third class have no authority to employ private counsel to prose- cute indictments for nuisance. OBSXRVCXIONS. In streets, etc., see Negligence. Of water course^ see Ice. Of flow of water, see Eminent Domain. 470 OCCUPATIONS— OFFICERS AND AGENTS. [Pari II. OCCUPATIONS. License tax upon, see Assessment Etc. Oia^dBlJSES. See Vehicles. OrFICERS APID AGENXS. Statement of account by, see Account. Power to institute suit on behalf of municipality, see Action and Suit. Power to bind municipality by contracts, See Contracts. Power to draw warrants on treasury, see Id., IV. Controller, discretion in countersignature of warrants, see Contracts, IV. Municipality's liability for negligence of, see Negligence. Enforcement of ordinances by, see Ordinances Etc. IV. Duties as to taxes ; injunction to restrain collection, etc. , see Assessment Etc. Obligations of municipality signed by officers individually, see Debts and Bonds. Mandamus to compel election by select council. — ^Lamb «. Lynd, 1863, 8 Wr. 336. Mandamtis lies to compel the select council of a city to elect municipal officers whose election is the duty of the councils under the charter. It is not a valid reason for refusing to proceed with such election, that members of the common council may have been fraudulently retained and others fraudulently excluded, each branch being the sole judge of the qualifications of its members, nor that they are about to propose a change in the law. Article Vin, sec. 3, State Constitution— Fixed election days- Charter provisions.— Comm. v. McCarthy, 1876, 3 W. N. C. 477. Article VIII, section 3, of the new State Constitution, instituting a fixed day for the charter election of all cities, is to be applied to each particular charter, as the question arises, so that an election may be held before the regular term of office begins. It cannot be so applied as to cut off any part of a term. Qualifications of electors.— Comm. v. Mosier, 1876, C. P. Luzerne, 5 Luz. Leg. Reg. 158. It is not unconstitutional for a borough charter to prescribe for electors of borough officers qualifications different from those prescribed by the Constitution and the general election laws for electors of other officers. Clerk of city court— Act incorporating PMladelphia.— Johns «. Nich- ols, 1 Y. 180, 1792. The act incorporating the city of Philadelphia did not, under section 39, vest in the corporation the power of appointing the clerk of the city court. Controllers of cities of third class— Filling vacancies.— Comm. v. Evans, 1883, 14 W. N. C. 8. A vacancy occurring in the office of school controller in cities of the third class is to be filled by the board of control- lers until the next municipal election, when the voters of the ward are to Part 11.} OFFICEES AND AGENTS. 471 elect a controller to serve until the expiration of the term in which the va- cancy occurred. Controller of Philadelphia a county officer— Pilling vacancy.— Tag- gart V. Comm. 1883, 6 Out. 354. The controller of Philadelphia is, by vir- tue of Article XIV, section 1, of the Constitution, and the Act of March 31, 1876, a county officer. The fact that the controller was referred to in the Act of June 11, 1879, and in several ordinances as the ' ' city controller, ' ' is Immaterial. A vacancy in the office is therefore to be filled by the Governor, not by the city councils. Affirming 16 Phila. 89, 40 L. Int. 68. Comm. V. Kingsbury, 1883, C. P. Lackawanna, 5 Luz. Laws, N. S. 53. The Act of April 11, 1876, providing for the filling of vacancies in the office of controller of cities of the third class, repeals the first section of the Act of 1875. Such a controller, elected on the third Monday of February, is enti- tled to take his office on the first Monday of March succeeding his election. Removal of appointed officers— Article VI, section 4, State Consti- tution. — Houseman v. Comm., 1882, 12 "W. N. C. 505. The provision of Article VI, section 4, of the State Constitution, providing that appointed officere, other than those therein named, may be removed at the pleasure of the power by which they were appointed, applies to municipal as well as to other public officers. Same— Recorders of cities of first class.— Lane v. Comm., 1883, 7 Out. 481. Recorders of cities of the first class appointed under the Act of April 18, 1878 (P. L. 26), may, by virtue of the provisions of the Article VI, section 4, of the Constitution, be removed by the Governor during their terms of office, without the concurrence of the Senate. Affirming 13 W. N. C. 29, 16 Phila. 102, 40 L. Int. 140. Same — Police officers. — Comm. v. Stokely, 1887, C. P. 315. A police officer is not a public officer within the meaning of Article VI, section 4, of the State Constitution, providing for the removal of appointed officers at the pleasure of the power which appoint them. He is a merely ministe- rial officer, and his appointment and removal is subject to legislative action. The provision of the new charter of the city of Philadelphia prohibiting the dismissal of such officers without cause and a trial by a court of in- quiry is therefore constitutional. Comm. V. Pittsburgh, 1850, 2 H. 177. The right of appointing night Dolicemeu for the city of Pittsburgh belongs to the council of that city and not to the mayor. Same — Services — Salary. — Smith v. Philadelphia, 1851, C. P. 2 Par- sons, 293. Municipal officers may be dismissed by the power which ap- pointed them before the expiration of the term for which the appointment was made, and at the pleasure of the appointing power. Services rendered by such officers do not partake of the nature of a contract. Such a dis- charged officer cannot recover salary for the remainder of the term. See also Barker v. Pittsburgh, 4 Barr, 49. Wrong resulting from election— Remedy quo warranto, not injunc- tion. — Smith V. McCarthy, 1867, 6 Sm. 359. A wrong resulting from an election of municipal officers must be remedied by contesting the election before the proper tribunals or by testing by quo warranto the right of the officers assumed to have been elected' ; there can be no remedy by injunc- tion. Quo warranto — Information by private relator. — Comm. v. Stevens, 1877, C. P. Luzerne, 6 Luz. Leg. Reg. 37. A citzen who has no greater in- terest than such as is common to all citizens, cannot sue out a writ of quo warranto to test the defendant's right to hold a municipal office. Comm. V. Jones, 1878, C. P. Schnylkill, 1 Schulyk. Leg. Reg. 293. An information will lie on behalf of a private relator to test the right of an of- ficer in a municipal corporation upon grouhds afiecting his title where the writ oiquo warranto was preceded by a rule to show cause. 472 OFFICERS AND AGENTS. [P«r< II. Same— Councilman of borough— Jurisdiction etc.— Comm. v. Hosier, 1876 C. P. Luzerne, 5 Luz. Leg. Rec. 158. The courts of common pleas have jurisdiction of quo warranto proceedings to try the right of a person to hold the office of councilman of a borough. The burgess of the borough is competent to file the writ. Street commissioners are not mere officers or agents— Creation of commission. ^Mellon v. Pittsburgh, 1874, D. C. Allegheny, 31 L. Int. 212. Municipal commissioners appointed by the Legislature, for the purpose of grading and paving streets, and levying taxes or assessments upon proper- ties to pay the expenses thereof, e. g. those appointed for the city of Pitts- burgh by the Act of April 2, 1870, are not mere municipal oflacers or agents. It seems that the creation by a city council itself, of a commission with mu- nicipal functions would be unconstitutional, although such a commission might be so appointed, to supervise a public improvement, as a mere agent of the municipality. Falsification of the papers— School district.— Comm. v. Beamish, 1876, 31 Sm. 389. A school district is merely a gMosi-corporation. It is not a " body corporate " within the meaning of section 118 of the Act of March 31, .1860, relating to the falsification of papers, etc., by directors of bodies corporate. Embezzlement— Clerk of Philadelphia Gas Trust.- Comm. v. Gulp, 1884, C. P. 16 Phila. 496, 41 L. Int. 134. A clerk in the employment of the gas trustees of Philadelphia was an employ^ of a municipal corporation within the Act of June 12, 1878. Affirmed, 13 Out. 363. Salary— Increase— Constitutionality.— Baldwin v. Philadelphia, 1881, 3 Out. 164. A municipal ordinance is not a law, but " a mere local regula- tion." Hence an ordinance increasing the salary of a municipal officer during his term of office, is not unconstitutional. Ferberi). Scranton, 1883, C. P. Lackawanna, 5 Luz, Law T., N. S., 121. The chief engineer of the fire department of a city of the third class is not a public officer, where his compensation is not in the form of a salary, but by means of a special borough uniform appropriation each year ; and an in- crease of such appropriation is not unconstitutional. Ofacial account— Individual claim against corporation.— Todd ». Patterson, 1867, 5 Sm. 496. An officer of a municipal corporation cannot have a credit in the settlement of his official account for an indiyfidual claim against the corporation. Same— Claim for additional compensation.^Hays v. Oil City, 1887, 4 Lane. L. Rev. 405. A municipal officer cannot claim additional compen- sation for services rendered within the general scope of their official duties, unless under express contract. "Nice distinctions between what duties may, and what may not, be considered strictly official, should meet with little favor by the courts." Same — Services rendered in criminal proceedings — Assumpsit.— Lancaster County v. Brinthall, 1857, 5 C. 38. The law implies a promise on the part of a county to pay for services rendered to it by pfficers in crim- inal proceedings, and assumpsit will be upon such a claim. Same— Statute of Limitations. — Lancaster County V. Brinthall, 1857, 5 C. 38. The statute of limitations runs in favor of a county upon a claim against it for services rendered by an officer in criminal proceedings. Same— Pees— Statute regulating— Constitutionality— Local legisla- tion. —Morrison V. Bachert, 1886, 43 L. Int. 240, 33 Pitts. L. J. 463. A statute, e. g., the Act of June 12, 1878 (P. L. 187), providing for the ascer- tainment of the fees of county officers, is a " law regulating the affairs of- counties," and when it perpetually excludes from its operation all counties of a population above a specified number, it is in violation of Article III, section 7, of the Constitution. Part II.'] OPFICEES AND AGEN^TS. 473 Pittsburgh controller— Accounts against county officers. -Eowand ». Allegheny, 1886, 33 Pitts. L. J. 225. Powers and duties of controller of Pittsburg m settling accounts against county ofBcers. Stating account.— O'Donnell v. Philadelphia, 1869, C. P. Philadelphia 26 L. Int. 37, 2 Brewst. 481, 4 Phila. 234. A municipal council has power to authorize the mayor and other proper officers to bind the municipality by stating an account. Mandamus to compel suspended officer to deliver books etc — Comm. V. Welchans, 1881, C. P. Lancaster, 12 Lane. B. 150. Where a mu- nicipal officer has been lawfully suspended from his office by the councils, and a successor legally chosen for the unexpired term, mandamus will lie by the new incumbent to compel the suspended officer to deliver up all moneys, books and papers of the municipality in his possession. Neglect of duty— Indictment.— Graffins v. Comm., 1832, 3 P. & w. 502. It seems that a municipal corporation cannot make a neglect of duty by its officers indictable. Usurpation— Forfeiture of municipal charter.— Comm. v. Pittsburgh, 1850, 2 H. 177. The charter oSa municipal corporation is not liable to for- feiture for the usurpation by one of the municipal functionaries of rights belonging to another. Mayor— Abatement of nuisance.— Fields o. Stokely, 1882, 11 W. N. C. 344. The mayor of a city may, as the conservator of the public peace and the protector of the property of the citizens, abate a nuisance whereby the lives, health and property of the citizens are endangered. But in such a case his official position does not relieve him from the necessity of proving to the jury, in order to escape personal liability for the act, the fact of nuisance. Mandamus — Jurisdiction. — Adams v. Duffield, 1863, 4 Brewst. 9, Bright Election Cases, 646. The courts of common pleas have jurisdiction by man- damus over municipal officers. When authority is equivalent to imposition of duty— Discretion— Mandamus.— Comm. v. Baldwin, 1880, C. P. 14 Phila. 93, 37 L. Int. 456. Whereby a statute, e. g., the Act of April 15, 1880, a municipal officer is "authorized " to do a certain act, as to issue licenses for the operation of omnibuses upon the streets for hire, the doing of the act being beneficial to others than the officer, the latter is bound to do the act unless, being vested with a discretion therein, he refuses to do it in the reasonable exer- cise of such discretion. And such discretion is renewable upon an applica- tion for a mandamus. Injunction- Officer's discretion.— Brown v. Philadelphia, 1884, C. P. 41 L. Int. 242. A court of equity will not control by injunction, in the absence of any charge of fraud or collusion, a discretion lawfully vested in municipal officers. Roumfort v. Harrisburg, 1871, C. P. Dauphin, 2 Pear. 101. Municipal officers cannot be restrained by injunction from doing an act, or compelled to do an act, which is within their discretionary power. Mathews v. Scranton, 1878, C. P. Luzerne, 7 Luz. Leg. Eeg. 108, 25 Pitts. L. J. 179. Injunction lies to restrain official acts of municipal authorities where such acts are gross abuses of power and encroachments on the rights of individuals. Wharton v. School Directors, 1862, 6 Wr. 358. School districts are not strictly municipal corporations ; they belong to the class of gaasi-corpora- tions to which counties and townships belong. The courts have equity jurisdiction over them to restrain illegal acts by their representatives. As to the discretion of controllers in the countersignature of warrants, see Con- tracts, IV. Same— Power to prosecute public works.— Delaware County's Ap- peal, 1888, 21 W. N. C. 112. The question of the power of municipal of- 474 OFPICEKS AND AGENTS — ORDINANCES AND BY-LAWS. [Pari II. fleers to prosecute a public work, e. g., to rebuild a bridge, cannot be passed upon on a bill by a private individual to restrain such work. Bevemng 4 Lane. L. Eev. 122. Same— As between corporation and oficers.— Philadelphia v. Coch- ran 1877, 34 L. Int. 160. Divided court on the question whether an in- junction will be granted as between a municipal corporation and its own of- ficers, the State being no party. Same— To restrain levy of tax beyond legal limit.— Matthews i\ Scranton, 1878, C. P. Luzerne, 7 Luz. Eeg. 127. The officers of a muni- cipal corporation will be enjoined at the instance of a citizen and taxpayer from assessing and levying a tax beyond the limit fixed by law, and from increasing the municipal indebtedness beyond that limit. See, as to taxa- tion in general, Assessment Etc. ORDI?(AXCES AND BV-I^A^VS. I. THE GENERAL POWER TO PASS ORDINANCES : THEIR SCOPE AND VALIDITY. II. ORDINANCES RELATING TO SPECIAL SUBJECTS. III. REQUISITES AS TO FORM, MODE OF ENACTMENT ETC. IV. ENFORCEMENT; PENALTIES FOR VIOLATION; PROCEED- INGS. See also Assessment Etc. Ordinances relating to municipal contracts, Appropriations etc., see Confracts. Relating to municipal debts, see Debts and Bonds. RelaMng to private corporations, see Private Corporations Etc. Conflict between ordinance and charter of private corporation, see Id. Must be -witMn charter powers.— Shroder's Appeal, 1875, 1 W. N. C. 528. Every municipal ordinance must be within the powers granted to the corporation by its charter. Conformity with State Constitution and laws.— Scranton v. Vail 1877, C. p. Luzerne, 6 Luz. Leg. Reg. 237. A municipal ordinance repug- nant to the State Constitution and laws is void. Must be general and impartial.— Danville Borough v. Peters, 1879 C P. Montour, 8 Luz. Leg. Reg. 273. Municipal ordinances should' as far as practicable, be general in their nature and impartial in their opera- tion. An ordinance which prohibits peddling in the streets, except by per- sons who have attended market, is invalid, because partial in its operation. Duty enforceableat common law.— Philadelphia & Reading Railroad V. Erwin, 1879, 8 Nor. 71, 7 W. N. C. 73. A municipal corporation cannot create by ordinance a civil duty enforceable at common law. Reasonableness.— Kneedler v. Norristown, 1882, 12 "W. N. C 37 39 L Int. 230. A municipal ordinance must be reasonable. Kneedler v Norris- town 1882 12 W. N. C. 37, 39 L. Int. 230 ; Philadelphia v. Empire Rail- way Co., 1869, C. P. 7 Phila. 321, 26 L. Int! 404. And see 11. . ^*^®9* "Where part is void.— Pittsburgh's Appeal, 1887, 5 Am 4 The invalidity of one section of an ordinance does not invalidate the entire ordi- Part 77.] ordinances and by-laws. 475 nance. .£. jr., an illegal attempt to impose conditions upon a corporation in granting it authority to enter upon tlie streets of a city, does not nullify the grant itself. Harrisburg v. Passenger Railway Co, 1867, C. P. Dauphin, 1 Pear. 298. If a by-law or ordinance be entire, so that the part which is void influences the whole, the entire by-law or ordinance is void. Repeal by subsequent statute.— Comm. v. Gillam, 1832, 8 S. & E. 50. A subsequent statute repeals a conflicting municipal ordinance. Effect of cliange firom borough to city government — ^Recording.— Erie Academy v. Erie, 1859, 7 C. 515. Where the government of a borough is changed into that of a city, all existing ordinances, except as they are altered or aboli.shed by the new act of incorporation, continue in force. A provision that they shall be recorded within four months of the new incor- poration is directory merely. As to recording in general, see III, infra. Resolution.— Kepner v. Comm., 1861, 4 Wr. 124. A resolution of a mu- nicipal council is to be considered and treated as an ordinance in all cases, except where it is a mere rule regulating the procedure of the council itself. See also Pottstown v. Preyer, 1886, C. P. Montgomery, 2 Montgom. Co. 70. See also as to resolutions, II, infra. Ordinance is not a law— Increase of salary. — Baldwin v. Philadel- phia, 1881, 3 Out. 164. A municipal ordinance is not a law, but " a mere local regulation." Hence an ordinance increasing the salary of a municipal officer during his term of office is not unconstitutional. II. Ordinances Relating: to Special Subjects. Wooden buildings— Prohibiting erection of.— Wilkesbarre v. Bertels, 1876, C. P. Luzerne, 5 Lnz. Leg. Reg. 149. A statute authorizing a muni- cipality to pass ordinances prohibiting the erection of frame buildings within the municipal limits, is constitutional. Kneedler v. Norristown, 1882, 12 "W. N. C. 37, 39 L. Int. 230. A muni- cipal corporation's power to prohibit by ordinance the erection of frame buildings within its limits, can be derived only from express legislative au- thority. It cannot be implied from a grant of general powers. It will, moreover, be deemed unreasonable when no special circumstances are dis- closed, indicating its necessity or advantages in the particular case. See also South Chester v. Stevenson, 1885, C. P. Delaware, 2 Del. Co. 399. As to enforcement of such ordinances, see IV. Klinger v. Bickel, 1887, 20 "W. N. C. 353. An ordinance prohibiting the erection of frame buildings within certain limits is a valid exercise of the police power of the State as confided by the State to municipalities. It does not conflict with Article XIV, Section 1, of the Federal Constitution, pro- hibiting the States from depriving persons of property without due process of law. Nor with the provision of the State Constitution prohibiting the Legislature frpm passing special or local laws. That it prohibits the erec- tion of such buildings in only a part of the municipality, does not render it obnoxious to the latter constitutional provision. Slaughter houses.— Codeu v. Gettysburg, 1876, C. P., 8 Leg. Gaz. 107. An ordinance prohibiting slaughter houses within the limits of a borough, is valid. Cattle yards. — ^ Allegheny v. Heyl, 1878, C. P. Allegheny, 7 Lnz. Leg. Eeg. 245, 26 Pitts. L. J. 70. A municipality which possesses power to " define and declare what shall be nuisances," may not declare anything such which cannot be detrimental to the health of the city or dangerous to 476 ORDINANCES AND BY-LAWS. IPart II. its citizens or a public inconvenience. An ordinance declaring yards and sheds for the custody of cattle nuisances, in language so broad that it might be construed to cover buildings merely erected but never used for such pur- pose, and well kept stables, is invalid. Animals found at large.— C!onier v. Whitney, 1874, C. p. Phila., 9 Phila. 184. A municipal ordinance directing the taking up of horses found at large in the streets, and their sale after due notice of the time and place thereof by advertisement, is valid. Goods on porches etc.— Carlisle v. Baker, 1795, 1 Y. 471. An ordinance of the city of Philadelphia inflicting a penalty on persons placing goods on their porches or cellar doors, projecting more than six inches into the street, Md bad under 9 Geo. III., Feb. 18th, 1769 iProv. Laws, 371). , Markets.— Whartman v. Philadelphia, 1859, 9 C. 202. Every municipal corporation in Pennsylvania which has power to make by-laws and estab- lish ordinances to promote the general welfare of the town or city, may, by the common law of the State, fix the times and places for holSing public markets for the sale of food, and make such other regulations concerning them as may conduce to the public interest. Philadelphia possesses the right to establish markets also by statute. The right to establish a market includes the right to change its location when the necessities or convenience of a people demand it. Use of streets by omnibuses.— Comm. ■;;. Baldwin, 1880, C. p., 14 Phila. 93, 37 L. Int. 456. Although the right to use the streets of a city with vehicles for hire does not require express State or municipal legisla- tion, the municipality has also without express legislation the right to make such ordinances as are necessary for the proper regulation and con- trol of such use. Sale of coal by weiglit and measure— Charge for use of scales.— O'Maley v. Freeport, 1880, 15 Nor. 24. An ordinance requiring the pur- chase and sale of coal by weight and measure, and to pay for the weighing and the use of the public scales, is reasonable and ' constitutional. The charge for weighing is not a tax. Bestrictions upon " vending and selling " goods—" Hawking and peddling." — Dalrymple v. Wilkesbarre, 1882, C. P. Luzerne, 2 Kulp, 39, 11 Luz. Leg. Reg. 41. A prohibition by municipal ordinance against the selling or vending of goods by a particular class of persons must be sanc- tioned by express legislative authority, and will be strictly cou.strued. A provision in the municipal charter that the mayor and council shall have power to regulate " the hawking and peddling " of goods, does not authorize an ordinance which prohibits persons, not the occupants of stores etc., from "vending and selling." The terms are not synomymous. III. Requisites as to Form, mode of Enactment Etc. Clearances of Title.— Esling's Appeal, 1879, 8 Nor. 205. A municipal ordinance sufficiently complies with the Act of May 23, 1874 (P. L. 230), if its title fairly gives notice of its subject matter. Lackawanna Coal & Iron Co. v. School District, 188f-, C. P. Lackawanna, 2 C. P. Repr. 158. An ordinance accepting and adopting the provisions of an act of Assembly and its supplements, but containing no mention of the supplements in its title, does not violate the sections of the Act of May 23, 1874, which provide that ordinances must have their subjects clearly ex- pressed in their titles. When irregularities in enactment do not invalidate. — Beechwood Avenue, 1887, Q. S. Montgomery, 3 Montgom. R. 111. The enactment of an ordinance is a legislative, not a judicial, proceeding, and its validity can- PaH II.'\ ORDINANCES AND BY-LAWS. 477 not be questioned on the ground ot irregularities iu the earlier stages of its enactment, e g where it finally was passed by a majority of a borough council, by the fact that an amendment was carried by the castine vote of the burgess. " Approval— Resolution— Street.— Terrace Street, 1876, Q. S. Luzerne 5 Luz. Leg. Reg. 79. A resolution of a municipal council adopting and en- acting a proposed street is invalid, if not submitted to and approved by the mayor. Same— City of third class— Affixing wrong date to approval.— Al- lentown v. Grim, 1885, 16 W. N. C. 312, 42 L. Int. 337. Where the mayor of a city of the third class signs his name to an ordinance duly passed by the councils, but aflxes by mistake a date prior to its passage by the select council, the validity of the ordinance would be sustained on the ground that the mayor had not disapproved it, and returned it to councils etc. , within fifteen days after its passage, even if the validity of the approval could be questioned on the ground of such mistake. Same —Failure of mayor to return disapproved ordinance.— Penn- sylvania Globe Gaslight Co. v. ^cranton, 1881, 1 Out. 528, 10 W. N. C. 269, 38 L. Int. 372. An ordinance passed by the council of a city of the third class becomes operative when not returned by the mayor, after proper pre- sentment to him for his approval or veto, although at the expiration of the fifteen days the council is not in session. In such case the mayor should call a special session to reconsider the disapproved ordinance. Its return to the council at the beginning of the next regular session is not sufficient. The 4th section of the Act of May 23, 1874, providing that the mayor shall return disapproved ordinances within ten days, or at the next meeting of council after ten days have expired, applies only to cities of the first and second classes. Refusal of burgess to sign.— Comm. w. Kepner, 1873, C. P. Schuylkill, 30 L. Int. 312, 1 Leg. Chron. E. 265. The burgess ofa borough subject to the Act of 1851 has no right to sit as a member of the council. He cannot refuse to sign an ordinance on the ground that he was not present as a mem- ber when it was passed. See contra, Price v. Beale, 1877, C. P. Chester, 34 L. Int. 243, holding that sec. 8 of the Act of 1834 is still in force. Publication and recording.— Olds v. Erie, 1875, 29 Sm. 380. Where a statute requires that no ordinance relating to a certain subject shall be valid unless certain notice is given in the official paper previously to its passage, the publication in such paper of the proceedings of the council as a new matter of news is not sufficient. Same — Resolutions. — Marshall v. Comm., 1868, 9 Sm. 455. An unre- corded and unpublished resolution of a municipal council is within the pur- view of a statute providing that the "laws, ordinances, regulations and constitutions " made by the council, which were not recorded and published, should be null and void. Parrish v. Wilkesbarre, 1882, C. P. Luzerne, 2 Kulp, 182, 11 Luz. Leg. Reg. 241. A resolution ofa municipal council providing for the issue, snlu and redemption of bonds, is in effect an ordinance ; and where the charter provides that ordinances must be published, such a resolution must be pub- lished. Logan V. Tyler, 1855, D. C. Allegheny, 1 Crum. 244, 3 Pitts. L. J. 116. A resolution of a municipal council is within the purview of a charter pro- vision, which requires all laws, ordinances etc., to be recorded vrithin a cer- tain time. Milleretown v. McKee, 1882, 3 Penny. 129. The council of a municipal corporation may by a verbal resolution relieve a tax collector from further duties as such. The fact that such action was not entered on the minutes, does not invalidate it. In an action by the corporation against such col- lector, parol evidence of such action is admissible. 478 ORDINANCES AND BY-LAWS. [Pari II. Fell Street, 1886, C. P. Luzerne, 3 Lane. Law Rev. 232. A resolution of a municipal council must comply with the requirements necessary to give validity to an ordinance. „ ^^ ^ -c t See also Erie Academy v. Erie, Kepner v. Comm., Pottstown t>. Iryer, 1, supra. IV. Enforcement: Penalties for Violation. Pro- ceedings. What penalties may be provided— Imprisonment.— Barter ». Comm., 1831 3 P. &W. 253. A municipal corporation, which is given by its charter no power to commit, has no power to annex, to a mischief declared to be a misdemeanor, a penalty, with imprisonment in default of payment, on con- viction by the mayor or alderman. See also Httsburgh i. Young, 1834, 3 Wts. 363 ; Butler's Appeal, 1873, 23 Sm. 448. Comm. V. Delacey, 1881, C. P. Lackawanna, 3 Luz. Law T., N. S. 225. An ordinance must provide for imprisonment only in case of default in payment of the penalty. See also Scranton v. Wetherby, 1881, C. P. Lack- awanna, 3 Luz. Law T., N. S. 225. ^ ^ ,„„ . Coden v. Gettysburg, 1876, C. P., 8 Leg. Gaz. 167. A penalty provided for the violation of an ordinance may be imposed and the provisions of the ordinance enforced, although the ordinance contains an additional illegal provision for imprisonment. Same— forfeiture of property.— Kneedler v. Norristown, 1882, 12 W N. C. 37, 39 L. Int. 230. A municipal corporation cannot, under a general power to' make by-laws, ordain as a penalty a forfeiture of property. Phillips V. Allen, 1862, 5 Wr. 481. A municipal corporation cannot make a law providing for the forfeiture of goods for its breach, unless specially authorized by the Legislature. Same— Indictment for breach.— Respublica I). Duquet, 2 Y. 493, 1799. Although as a general rule municipal corporations have power to inflict only pecuniary penalties for the violation of their ordinances, to be recov- ered in an action of debt or levied by distress, they may direct the prosecu- tion of an indictment for such breach when they are vested with extraordi- nary powers by the Legislature of the State. See also Morrow v. Lancaster, 1879, C. P. Lancaster, 10 Lane. B. 193. Seizure of property on pretence of owner's violation.— Pox ». North- ern Liberties, 1841, 3 "W. & S. 103. A municipal corporation is not liable for an illegal seizure by its officer of plaintiff's property, under a false pre- tence that the latter was violating an ordinance of the corporation. Jurisdiction of burgess to impose fines— Act of April 3, 1851.— Comm. V. Thompson, 1885, 14 Out. 297. The burgess of a borough has no jurisdiction to impose fines for offences arising from the violation of borough ordinances, under the General Borough Law of April 3, 1851. Reid V. Wood, 6 Out. 312, distinguished. Enforcement of injunction — Wooden buildings.— Wilkesbarre v. Ber- tels, 1876, C. P. Luzerne, 5 Luz. Leg. Reg. 149. An injunction will be granted to restrain the violation of an authorized ordinance by the erection of frame buildings within the municipal limits, notwithstanding that the ordinance attaches no penalty to the offence. "Williamsport r. McFadden, C. P. Lycoming, 1884, 15 "W. N. C. 269. A municipal ordinance will not be enforced by injunction unless the breach sought to be restrained is a nuisance per se. South Chester v. Stevenson, 1885, C. P. Delaware, 2 Del. Co. 399. An ordinance prohibiting the erection of frame buildings generally in a small Part 1I.'\ ORDINANCES AND BY-LAWS. 479 town may be sustained by injunction, where the bill and affidavits show that the building complained of is located in a closely built part of the town and is particularly dangerous to surrounding property on account of the liability to nre. Tearing down wooden buildings.— Aronheimer v. Stokely, 1876 C P 11 Phila. 283, 33 L. Int. 338. One who has erected wooden buildings'within the limits of a municipality in violation of law, cannot have an injuuction to restrain the municipal executive from tearing them down, although no statute or ordinance gives him authority so to do. and there is an ordinance providing a penalty for the erection of such buildings and a mode of iudi- cially enforcing it. "^ Klurger v. Bickel, 1887, 20 W. N. C. 353. An ordinance prohibiting the erection of frame buildings and providing that any person erecting such a building should be compelled to remove it " or pay the costs of removal by councils," maybe enforced by the municipality by directing the proper officer to tear the building down. Arrest— Liability of municipality as trespasser.— Sharp v. Wilkes- barre, 1881, C. P. Luzerne, 1 Kulp, 73, 9 Luz. Leg. Eeg. 95. A munici- pality is liable as a trespasser * here it has authorized or ratified the en- forcement of a lawful ordinance in an unlawful manner, namely, by direct- ing its policemen to arrest a citizen for the violation of the ordinance (where such violation does not amount to nor tend to a breach of the peace) with- out warrant or complaint. It cannot defend on the ground of ultra vires, since the ordinance is within the general scope of its corporate powers, and the arrest in the line of the policeman's duty as a gaast-municipal officer. Firing guns— What not a violation.— Lancaster v. Baer, 1873, c. p. Lancaster, 5 Lane. B. No. 28. An ordinance prohibiting the firing of guns or other firearms within the municipal limits is not violated by such firing for the purpose of protecting property. Summary conviction for violation— Constitutionality— Power must be strictly pursued— Summons.— Kulp v. Wilkesbarre, 1882, C. P. Lu- zerne, 11 Luz. Leg. Eeg. 77. Summary conviction for violation of munici- pal ordinances is not inconsistent with the right of trial by jury as provided for in the Constitution. But the authority to summarily convict must be statutory and beyond question. And the power must be strictly pursued, and all the essentials of a summary conviction must appear upon the record. The proceedings must be commenced by a writ of summons. A personal note to the defendant is insufficient. What must be shown upon record— Service of warrant.— Philadel- phia V. Eoney, 1856, 2 Phila. 43. In a prosecution for the violation of a municipal ordinance, it must appear on the record in what manner the war- rant was served, and that the defendant appeared before the magistrate. Same— Eecital of ordinance.— Philadelphia v. Cohen, 1883, C. P., 40 L. Int. 434. The record of a conviction or judgment by a magistrate for violation of a municipal ordinance must recite the ordinance. Same — ^Evidence etc. — Northern Liberties «. O'Neill, 1853, C. P. Phila., 10 L. Int. 38. In an action for a penalty for a violation of an ordinance, sufficient must be shown upon the record to show that the defendant has done the act upon which the ordinance imposes the penalty. City V. Hughes, 1860, C. P., 4 Phila. 148, 17 L. Int 381. In proceedings before a magistrate for the recovery of a penalty for the violation of a mu- nicipal ordinance, every essential ingredient of the offence must be set out by the magistrate ; otherwise his judgment will be reversed. Philadelphia v. Harbison, 1875, C. P. Philadelphia, 32 L. Int. 40. In actions for penalties for violating municipal ordinances the record must set forth the essential parts of the evidence. City V. Duncan, 1860, 4 Phila. 145, 17 L. Int. 373. Proceedings before magistrates for the recovery of fines for the violation of municipal ordi- 480 ORDINANCKS AND BY-LAWS — PAVING. [Pali II. nances are not Bummary proceedings technically so tailed, but are in the nature of civil suits for the recovery of debts, and therefore the magistrate need not state upon the record the evidence upon which the conviction was The record must show that the magistrate had jurisdiction of the subject matter of the suit, the section of the violated ordinance, that the penalty- imposed conforms to the fine, that evidence was adduced in support of the charge, or that the defendant confessed the same, that witnesses were either sworn or affirmed, that the offence was committed within the limits of the municipality enacting the ordinance, and that judgment was duly entered against the defendant. If any one of these is omitted, the judgment will be reversed. See also St. Clair Borough v. Car, 1881, C. P. Schuylkill, 2 Schuylk. Leg. Rec. 87. ORDERS. Upon munieipal treasury for payment of claims, see Contracts, IV. ORGAPflZATIOBI. Of councils, see Councils. OVERFLO'W. See Negligence. PAR. ScUe of municipal bonds below, see DebU and Bonds, Subscription Etc. PARXIES. To suits, see Action and Suit. PASSEIKGER RAILWAY COIM[PAr«IES. See Private Corporations Etc. PAVING. Assessments for, see Assessment Etc., III. Defective, see Negligence. Notice to pave, where an adoption of existing grade, see Streets. Duty of private corporations using streets to pave, see Private Corporations Etc. Part //.] PAUPERS— pox.ES. 481 See Poor. PEACE. Preservation of, see Mobs and Biots. PEDDLIBIO. Licenses for, see Assessment Etc. Ordinances prohibiting or regulating, see Ordinances. PEPIAI^XIES. For violation of ordinances, see Ordinances. For violation of act relating to spaces around buildings, see Buildings. PETITION. For incorporation or for division into wards, see Incorporation Etc. For mandamus to compel levy of tax for payment of interest on bonds, see Sub- scription Etc. PIPES. Power of municipality to lay, in streets, see Streets. Laying of, in streets, by private corporations, see Private Corporations, Etc. PLAIVK ROAD. See Turnpike. PLEADI^fG. See Action and Suit. POLES. Telegraph, see Private Corporations Etc., V. Liberty pole in street, see Negligence. 31 MUEPHY. 482 POLICB COMMITTEE — POWEES AND EIGHTS, ETC. [PaH II. POLICE COMimTTTEE. Benting of building for armory by, see Armory. POIvICE OFFICERS. See Officers. Negligence of, See Negligence, I. Employing extra policemen during public celebrations, see Entertainment Etc. POLICE PO'WER. See Ordinances. Municipal licenses, see Assessment Etc. POOR. Municipality's liability for support of, see Contracts, 1. Guardians of, contract with, for supplies, see Id., II. Overseers of, grant of powers to, see Powers Etc. POPULATION. Classification of municipalities upon baMs of, see Classification Etc. PO'WERS AND RIGHTS OF MUNICIPAL CORPO- RATIONS: IN GENEEAL. Conflict between claims of municipal and private corporations, see Private Corpo- rations Etc., IV. Power to assess, license and tax, see Assessment Etc. Power to borrow money, see Debts and Bonds. Eminent domain, see that head. Special powers relating to particular subjects, see Ordinances Etc., Streets, Bridges Wharves, Entertainments and Public Celebrations. Power to prohibit nuisance, failure to exercise, see Negligence, I. Regulation and control of private corporations, see Private Corporation Etc. Subscription for stock of private corporations, see Subscriptions Etc. To act as trustee for charitable purpose, see Trust. To issue small notes, see Debts and Bonds. To lay gas pipes in streets, see Streets. To construct sewers, see Sewers. See also Contracts. Part //.] POWERS AND RIGHTS OP MUKICIPAL COEPOEATIONS. 483 Strict construction of powers.— The rule that grants of power to cor- porations are to be strictly construed, applies to grants to municipal corpo- rations. Dalrymple v. Wilkesbarre, 1882, C. P. Luzerne, 11 Lnz. Leg Eee 41 ; Terrace Street, 1876, C. P. Luzerne, 5 Luz. Leg. Reg. 79. Same— Quasi-municipal corporation.— Wimer v. Overseera, 1883 8 Out. 317. A 2MasJ-municipal corporation, such as the board of overseers' of the poor of a township, has only the powers conferred upon it by statute and all acts done by it in excess of such powers are void. ' Misnomer of municipality in grant of power.— Riddle v. Philadel- phia, 1854, 1 Crum. 158, 2 Pitts. L. J. 106. A legislative grant of author- ity to a municipal corporation by its generally received, though not its cor- porate name, is good. Tender of new power to be accepted by election.— Moers v. Reading, 1853, 9 H. 188. The Legislature may tender to a public corporation a new power or privilege, and permit its acceptance to be determined by the will of the people as expressed by an election ; this is not a mere delegation ot legislative authority. As to the constitutionality of statutes tendering to mnnicipalities the option of aacepting their provisions, see Classificatiou of Mxmicipalities. Enlargement of powers— Constitution, Art. XVI, Sec. 1— Water- works.— Lehigh Water Company's Appeal, 1883, 6 Out. 515. The first section of Article XVI, of the new Constitution, declaring that "all exist- ing charters or grants of special or exclusive privileges under which a bona fide organization shall not have taken place, and business been commenced in good faith at the time of the adoption of this Constitution, shall there- after have no validity," does not apply to a mere legislative enlargement of powers and privileges conferred upon a municipal corporation already in existence, e, g., io an act authorizing a municipality to construct or pur- chase waterworks. Deprivation of Contract— Contraction of limits.— Darby v. Sharon Hill, 1886, 2 Am. 66. Although the charters of municipal corporations are not of the nature of contracts with the State, but are amenable or revocable at the arbitrary discretion of the Legislature, yet where their corporate ex- istence and limits and alterations of the latter are regulated by general laws applicable to them all, such a corporation cannot be deprived of its exist- ence as such or suffer a contraction of its limits by judicial order, except in accordance with the provisions of the general law. Power to legislate— Counties. — Kittanning Academy V. Brown, 1861, 5 Wr. 269. Counties are not strictly municipal corporations, but merely jaosi-corporation. A county has no power to legislate. See Ordinances and By-laws. Performance of business through committees. — Comm. v. Pittsburgh, 1850, 2 H. 177. Municipal corporations may perform portions of their business through the instrumentality of committees. Loan of credit— Purchase of third party's judgment against cred- itor. — Barley's Appeal, 1883, 7 Out. 273. The purchase by a municipal Corporation for the purpose of set-off of a judgment held by a third party against a creditor of the corporation is ultra vires. Where the real purpose of such a purchase is to enable a third party to collect his claim through the corporation's right of set-off, the transaction is a loan of the credit of the corporation within the prohibition of Article IX, I 7, of the Constitu- tion. No rieht to trial by jury. — Dunmore Borough's Appeal, 1866, 2 Sm. 374. A'municipal corporation is not within the constitutional guaranty of trial by jury, and may be denied it. 484 PRINTING — PKIVATE CORPORATIONS, ETC. IPart II. PRINXIKiG Contracts far, see Contracts, II. PRIVATE CORPORAXIOPfS IN XHEIR REI*A- XIOKtS ViriXH MUNICIPAI^IXIES. I. IN GENERAL. II. STREET RAILWAY COMPANIES. III. STEAM RAILROAD COMPANIES. IV. COMPANIES FOR THE SUPPLY OF LIGHT, HEAT, WATEP. ETC. V. TELEGRAPH COMPANIES. VI. MISCELLANEOUS. Subscriptions for stock of, see Subscription Etc. Municipal taxes and assessments upon property or business of corporations, see Assessment and Taxation. Tax to pay portion of expense of bringing railroad nearer municipality, see la. lAability of municipality for injuries caused by failure of private corporation to safely reconstruct highway etc. , see Negligence. Contract with gas company, see Contracts. I. In General. Municipal appropriations to corporations— Article IX, Section 7, State Constitution. — Indiana County v. Agricultural Association, 1877, 4 W. N. C. 481. Article IX, Section 7, of the new State Constitution, pro- hibiting municipal corporations from being stockholders in, or appropriat- ing money for, any corporation or .individual, did not repeal existing laws authorizing what it prohibits. Its prohibitions are wholly prospective. In re Northern Home, C. P., 1876, 2 "W. N. C. 349. Eleemosynary cor- porations are within the constitutional provision prohibiting municipal cor- porations from appropriating money for " any corporation." Same— Act of May 21, 1874.— Wilkesban-e Hospital?;. Luzerne County, 1876, C. P. Luzerne, 5 Lnz. Leg. Reg. 255. The Act of May 21, 1874, au- thorizing the managers of a hospital in any city of not less than twenty thousand inhabitants, to make requisitions quarterly on the commissionera of the county for money for the support of poor patients under treatment, and requiring the county treasurer to pay the same on orders drawn there- for, is in conflict with Article IX, Section 7, of the State Constitution, pro- hibiting the General Assembly from authorizing any city etc., from appro- priating its money for any corporation, association, institution or indi- vidual. Same— Act of June 9, 1874— Penna. R. Co.— Elevated road in Pldla.— Duncan v. Penna. R. Co., 1880, 13 Nor. 435. Under the act of June 9, 1874, authorizing the authorities of a municipality to enter into -''"'^ ^^"i I'EIVATE CORPORATIONS, ETC. 4gg contracts with railroad companies whose lines lie within its limits wherebv snch companies may relocate their roads, the Pennsylvania E™ W r„™ panymay be authorized by the city of Philadelphia to construct an etvatTd" Tint 4re ^^^ ^^ ^°'""^^"^ '*" '*"""*'= ^J^mi„^13PhSa 68? 36 Contract with municipality as to manner of construction-Soeciflc performance-South Waverly Borough's Appeal, 1887 20 WN C 209 A court of equity will not specifically enforce a contract between borough authorities and a railroad company respecting the manner of constructilg the road across the borough streets, compelling the company to undo ill workanddoit in accordance with the alleged contract, especially where It IS disputed that the contract was validly made and the contract L vaeue in its terms. The remedy is in any event at law. r.£°?*fH* ^*^ municipaUty as to completion within specified time- EflectOf failure.— Pittsburgh, Fort Wayne and Chicago E. Co v Pitts- burgh, 1858, D. C. Allegheny, 1 Pitts. 392, 5 Pitts. L. J. 374. Where a municipal ordinance gives to a railroad company a choice of routes, but pro- vides that the road must be cqpipleted within two years from the passage of the ordinance, and the company proceeds at once to execute contracts and incur liabilities for the construction of the road, but is prevented by causes alleged to be beyond its control from completing it within the specified time, it does not thereby forfeit the right. Time is not of the essence of such a contract where the municipality could derive no benefit from its per- formance nor sustain an injury by its breach. Municipal consent to occupation of streets.— Comm. v. Central Pas- senger Ewy. Co., 1866, 2Sm. 506. A railroad company prohibited by its charter from using any railroad, turnpike or "artificial road " without the consent of ' ' the parties owning the same, ' ' cannot use the paved streets of a city without the consent of the municipal council. Same— Removal of Froad for reconstruction of culvert.— Northern Penna. E. Co. v. Stone, 1859, 3 Phila. 421, 16L. Int. 174, 8 Am. L. Eeg. O. S. 112. A grant of authority to a railroad company to construct its road through a certain portion of a city is not a revocation of the city's author- ity to reconstruct a culvert in such portion of the city ; and the city may remove the railroad for the purpose of making such re-construction. Regulation of speed.— Lancaster V. Pennsylvania Eailroad Co., 1880, C. P. Lancaster, 12 Lane. B. 99. A municipal corporation has power to reg- ulate by ordinance the speed of railway trains within its limits. Pennsylvania Eailroad Co. v. James, 1874, 31 L. Int. 372, 29 Pitts. L. J. 54, 6 Lane. B. 113. A municipality has the right to regulate the speed of railway trains within its limits at points other than street crossings. Opening streets across railroad property.— Philadelphia, Wilming- ton and Baltimore [E. Co. v. Philadelphia, 1872, C. P., 9 Phila. 563, 4 Leg, Gaz. 399. A municipality may open across property of a railroad com- pany used as a part of ite depot, though it thereby causes the company serious inconvenience, a street which had been confirmed as a highway upon the city plan at the time the company purchased' the ground. Beveraux v. Crawford, 1879, Venango, 37 Pitts. L. J. 22. A municipal corporation has no power to lay out and open streets longitudinally along and over railway side tracks in such a manner as to destroy or fatally im- pair the railway company's ordinary use of its franchise. As to mnnicipal assessments upon corporate property, see Assessment and Taxation. Same — Construction of crossing.— Chester v. Philadelphia, Wilming- ton and Baltimore Eailroad Co., 1881, 1 Del. Co. 9, 17. When a munici- pality lays out and opens a street across a railroad it is the duty of the mu- nicipality, and not of the railroad company, to construct the crossing. Failure to construct— Action by municipality against company.— Aston Township v. Chester Creek E. Co., 1833, C. P. Delaware, 2 Del. Co. 486 PRIVATE CORPORATIONS, ETC. [Part II. R. 9. Where a railroad company which has taken possession of a highway fails to reconstruct it according to law, and the municipal authorities there- upon construct a temporary way and are also compelled to pay damages for personal injuries occasioned by the condition of the highway, the munici- pality cannot in an action against the company join a count in assumpsit for reimbursement of the expense incurred in such construction with a count IT. Companies for tlie Supply of Llgflit, Heat, "Water Etc. Formation of company by city for supply of gas, see Contracts, I. Natural gas companies— Act of May 29^ 1885— Power of councils to couple conditions with assent to entry on streets.— Pittsburgh's Appeal, 1887, 5 Am. 4. Under the provisions of the Act of May 29, 1885, relating to the incorporation and regulation of natural gas companies the councils of municipalities cannot couple with their assent to the entry of such companies upon the streets for laying pipe etc., any binding condi- tions or restrictions not imposed by the act. The powers of the municipali- ties are confined to prescribing proper regulations for the laying, altering, repairing and inspecting of pipes, and such regulations must be reasonable and not in conflict with the provisions of the act. The assent of a municipality to such entry subject to certain unreason- able and illegal provisions in a recited ordinance is binding and operative without the submission of such a company to such conditions, and the mu- nicipality will be enjoined from preventing such entry. Peoples' Natural Gas Co. v. Pittsburgh, 1885, C. P. Allegheny, 1 C. C. E. 311. Preliminary injunction granted to restrain a municipality which had neither given nor withheld its assent to the entry of a natural gas company upon its streets from interfering with the company's laying of pipes under and across three unimportant streets, such action being without serious in- jury to the public and necessary to prevent great loss on the part of the company, it being doubted whether, under section 13 of the Act of May 29, 1885, the municipal assent must be obtained before making a mere crossing. Decree affirmed, 1 Penua. Sup. Ct. Digest, 32. Chartiers Valley Gas Co. v. Allegheny, 1886, C. P. Allegheny, 33 Pitts. L. J. 424. Under the 14th section of the Act of May 29, 1885, a natural gas company has the right to enter upon the streets of a municipality vrithout obtaining the consent of the municipal council. Chartiers Valley Gas Co. v. Pittsburgh, 1887, C. P. Allegheny, 34 Pitts. L. J. 240. The power of municipal council under the Act of May 29, 1885, to regulate the operations of natural gas companies in using the streets, extends only to the manner in which such operations shall be performed. They cannot specify the time of the year during which such operations may be carried on. See Northern Liberties v. Gas Co., infra. Eeading v. Consumers' Gas Co., 1884, C. P. Berks, 41 L. Int. 428. A company incorporated under Sec. 34 of the Corporation Act of 1874 is en- titled to enter upon streets for the purpose of laying pipes etc., in any dis- trict where it has exclusive privileges under the act, subject only to such regulations as the municipal authorities may make as to grade, public travel etc., for the protection and convenience of the public. Electric Light Co. v. Underground Electric Light Co., 1884, C. P., 42 L. Int. 4, 16 "W. N. C. 407. Companies incorporated under the 34th section of the Act of April 29, 1874, to supply artificial light other than gas light are subject to the same restrictions as companies incorporated under said section to supply gas light. To supply any artificial light within the limits of a mu- ex- Part J7.] PKIVATE COKPOKATIONS, ETC. 487 municipality, such a corporation must first obtain the consent of the uicipal authorities, and they cannot until then assume or enforce the elusive privileges granted by the act. Same— Mandamus to compel municipality to act on application for ?qS?",?^^iS"!? enter on streets.— Philadelphia Steam Supply Co. v. Phila., 1884, C. P., 41 L. Int. 252. Companies incorporated under section 34 of the Corporation Act of 1874, and authorized thereby to enter upon streets etc for the purpose of laying pipes, are entitled to a peremptory mandamus to compel the local municipal authorities to receive and act upon, in due form an application to the proper ofBcers for permission to so enter upon certain streets under such reasonable regulations as the authorities may impose. Same— Grant of exclusive privileges by ordinance— Injunction to restrain entry of second company.— Meadville Natural Gas Co. v Fuel Gas Co., 1886, C. P. Crawford, 1 C. C. E. 448. An ordinance granting to a natural gas company the right to enter upon the streets etc., requiring that the work be commenced and the gas introduced within specified times, and providing that "no other privilege shall be given by the city authorities for a similar purpose for a period of two years from the date of the passage thereof," is not tdtra vires unconstitutional or a violation of the Act of May 29, 1885, and another company authorized under a subsequent ordinance, passed before the expiration of the specified time, and V^hile the first com- pany was proceeding with its work of construction, to enter the streets for the same purpose, will be restrained from so doing by injunction. Exclusive privileges not valid as against municipality.— Lehigh Water Co.'s Appeal, 1883, 6 Out. 515. The exclusive privileges granted to water and gas companies by clause 3, section 34, of the Coporation Act of 1874, are valid only as against other private corporations and not as against the municipality within which such companies operate. Same— Provision in municipal charter that municipality shall have exclusive iight to supply gas. — Reading v. Consumers' Gas Co., 1884, C. P. Berks, 41 L. Int. 428, 2 Del. Co. K. 437. Such a company incorporated to supply gas is not barred from proceeding to enter upon streets etc., under the provisions of the act by the fact that the charter of the city in whjch it is to operate, granted subsequently to the grant of the company's charter, provides that the city is to have, at all times, the exclusive right to supply the city with gas, if the city has not acted under such power. Exclusive privileges valid as against company closely connected with municipality. — Chester v. New Chester Water Co., 1885, C. P. Dela- ware, 2 Del. Co. 433. A water company chartered under the Act of 1874 cannot be excluded from a municipality by a water company consisting of the members of the municipal council and having a close connection with the municipality, but which is not clearly a municipal corporation. Ordinance regulating time during which pipes maybe laid.— North- em Liberties v. Gas Co., 1849, 2 J. 318. An ordinance of a municipal cor- poration prohibiting the opening of streets for the purpose of laying gas mains from December 1 until the following March is a reasonable and nec- essary regulation, and therefore valid ; but an ordinance prohibiting the opening of a street for the purpose of laying pipes from a main to the side of the street, is unreasonable and void. See also Spring Garden v. Heisler, Mar. 3, 1849, C. P. Phila. Ms., Brightley's Dig. 436, and Chariters Valley Gas Co. V. Pittsburgh, supra. Water companies— Supply of water to municipality for extinguish- ment of fires. — Columbia's Appeal, 1880, 1 York Ijcg. Eec. 99. Where a water company is required by its charter to supply water for extinguishing fires to such hydrants or plugs as may be erected by the municipal authori- ties, it is not required to extend its pipes to plugs erected at distant points, but merely to supply such plugs as are erected over its pi^es. Easton «. Lehigh Water Co., 1881, 38 L. Int. 341. A water company which is required by its charter to furnish water for the extinguishment of 488 PRIVATE COBPOBATIONS, ETC. [Part II. conflagrations free of nharge to the municipality within which it operates is bound to furnish such a supply and erect such number of fire plugs as are reasonably requisite to the protection of the municipality. Query, Whether it does not conflict also with Article III, Section 20. Affirmed : 6 Luz. Leg. Reg. 161. Conflict between claims of private and municipal corporations- Construction. — North Penna. Eailroad Co. v. Stone, 1859, C. P., 16 L. Int. 174, Phila. 421, 8 Am. L. Reg. (O. S.) 112. "Where in a statute granting privileges to a private corporation it is sought to control general power given to a public corporation, the intention so to do must distinctly appear ; ' any ambiguity will be construed in favor of the public corporation. Northern Liberties v. Gas Co., 1*849, 2 J. 318. Where there is an alleged conflict between an ordinance of a municipal corporation and a provision of the charter of a private corporation, any ambiguity in the charter of the latter must operate against the latter and in favor of the public. See also Philadelphia v. Western Union Telegraph Co., C. P., 1876, 2 W. N. C. 455. Disapproval of grant of powers to private corporation — Nullifica- tion of disapproval by subsequent ordinance.— Musser v. Fairmount Railway Co., 1858, 5 Clark, 466. Where a municipality has by ordinance declared, in accordance with the terms of an act of Assembly, its disapproval of the grant of certain privileges to a private corporation granted in such act, upon condition of the municipality's assent, the power of the munici- pality in the premises is exhausted, and it cannot validly, by a subsequent ordinance, nullify its disapproval and give its agreement to the provisions of the statute. Amenability to ordinances.— Frankford etc.. Railway Co. v. Philadel- phia, 1868, 8 Sm. 119. Corporations chartered to carry on business In a city are to be regarded as inhabitants of the city, and, unless specially ex- empted, are subject to its ordinances. Municipal regulation.— Philadelphia v. Western Union Telegraph Co 1876, C. P., 2 W. N. C. 455, 11 Phila. 327, 33 L. Int. 129. All grants of power to private corporations to carry on business within the limits of a municipal corporation, are made upon the implied condition that such busi- ness shall be subject to all reasonable regulations the municipality may make. West Phila. Passenger Rwy. Co. v. Phila., 1873, 30 L. Int. 256. Muni- cipal regulation of corporations must be reasonable. See also the various heads infra. Impairment of vested corporate rights. West Philadelphia Passenger Railway Co. o. Dougherty, 1876, C. P. 3 W. N. C. 62. A municipality cannot by ordinance grant any privilege which substantially impairs the vested rights of private corporations lawfully using Deverauxj). Crawford, 1879, C. P. Venango, 27 Pitts. L. J. 22. A court of equity will interfere by injunction to restrain a municipality from invad- ing or impairing the franchise of a private corporation. Taking franchises for free public uses— Limitation for damages. Royersford Bridge, 1886, Q. S. Montgomery, 2 Montgom. Co. 21. A statute limiting the amount of damages to be paid by municipalities for property and franchises of private corporations taken for free nublic use is unconstitutional. Affirmed: Id. 61, 2 Am. 627. See also Phoenixville Bridge, 1886, C. P. Chester, 2 Montgom. Co. 157. PaH 11.1 PEIVATE COBPOKATIONS, ETC. 489 Same-Tump^e-Art of March 24, 1869.-Frankford and Bristol Turnpike Co., 1885, C. P. 42 L. Int. 46. The compulsory taking of a turnpike road by a municipality, under the act of March 24 1869 is a taking of private property for public use, within Article XVI, section's of the Constitution, and an appeal lies from the preliminary assessment of damages. As to opening streets across railroad property, see III infra. Settlement between township and company occupying highway. Danville, Hazleton and "Wilkesbarre R. Co. v. Comm. 1873, 23 Sm. 29. The statutory methods of obtaining and making compensation for right of way do not apply to the settlement of differences between tovniship author- ities and a company which had occupied a public road. Same— Invalidity of conditions does not nullify granting part of ordinance. — Pittsburgh's Appeal, 1887, 5 Am. 4. That a portion of an or- dinance is invalid in imposing conditions upon a corporation to which the ordinance grants authority to enter upon the streets of the city does not in- validate the grant itself. II. Street Rail^vay Companies. See also III. As to licensing of omnibuses to run on streets, see Ordinances, Streets. See further as to street railway companies in general, Part III, Railway Com- panies, XIII. Municipal assent to occupation of streets— Article XVII, Sec. 9, State Constitution. — Pittston v. Pittston Passenger Railway Co., 1877, C. P. Luzerne, 6 Luz. Leg. Reg. 223. An extension of a city passenger railway company's tracks may be constructed without the consent of the municipal council where the power to make such an extension was granted to the company by a statute and ordinance passed before the adoption of the new Constitution. Williamsport v. Williamsport Rwy. Co., 1887, C. P. Lycoming, 3 C. C. R. 39. A street railway company incorporated prior to 1874, but subject to the constitutional amendment of 1857, though authorized by its charter to occupy streets without obtaining the consent of municipal authorities, is deprived of such power by Article XVII, Section 9, of the present Con- stitution, and the municipality will be granted an injunction to restrain such ou unauthorized occupation. Same — Injunction. — Philadelphia v. Lombard and South Streets Railway Co., 1863, 5 Phila. 248, 20 Leg. Int. 173. A condition in the charter of a street railway company that the consent of the municipality shall be obtained before the road was constructed, will be enforced by injunction. Same — ^When not inferred. — Hestonville etc. Railway Co. v.. Schuyl- kill River Rwy. Co., 1866, C. P., 6 Phila. 141, 23 L. Int. 213. A city council's approval of a street railway company's occupation of the streets will not be inferred in the absence of proof of express notice to the council of an intention to occupy the streets. Bill to restrain unlawful occupation— Municipality as party.— Philadelphia u. Thirteenth and Fifteenth Streets Rwy. Co., 1871, 8 Phila. 648, 28 Leg. Int. 164, 3 L. Gaz. 156. The municipality is a proper party complainant to a bill to restrain a street railway company from unlawfully laying its tracks upon a street. 490 PRIVATE COEPOEATIONS, ETC. IPart II. Municipal regulation— Ordinances relating to construction, repair of streets, etc.— Reasonableness.— Hanisburg Rwy. Co. v. Harrisburg. 1884, C. P. Daupbin. 2 Chest. Co. 333. Legislative authority to a street rail- way company to "lay out and coustruct one or more railways with double or single tracks with turnouts, * * * for which purpose they are author- ized to occupy any of the streets of said city," etc., does not exempt the company from reasonable municipal regulation made for the protection of the public in the use of the streets. An ordinance requiring the rails to be of the kind known as "street rails for horse railway cars," requiring the rails to be so laid as to conform to the grade of the street, and to be subject to future changes of grade, requiring the submission of all plans of the road for the approval of the municipal council and its construction under the supervision of the city engineer, is reasonable and valid. Philadelphia v. Empire Passenger Railway Co. 1869, C. P. Phila. 3 Brewst. 570. An ordinance which provides that a horse railway company authorized to use its streets shall pave the track between the rails in such a manner as would cost more than all the rest of the railway, and which lodges in a single municipal officer power to approve the manner in which such paving is done, is unreasonable and void. Philadelphia v. Continental Ewy. Co., 1875, C. P., 11 Phila. 315, 33 L. Int. 43, 2 W. N. C. 283. Where a plan of the proposed route of a street railway company has been submitted to and approved by the board of sur- veyors of Philadelphia, the company must lay its tracks in conformity there- with. Such confoimity is an implied condition of the city's consent to the construction of the road. West Philadelphia Kwy. Co. v. Philadelphia, 1873, 10 Phila. 70, 30 L. Int. 256. Although a street railway company chartered by the State is subject to municipal regnlalion, such regulation must be reasonable. It cannot by such authority be compelled to remove its original track to make room for the track of another company subsequently incorporated. Harrisburg v. Harrisburg Ewy. Co., 1867, C. P. Dauphin, 1 Pear. 298. A municipality may compel a street railway company to keep in repair so much of its streets as are occupied by it, but no more. Company has no power to change grade— Injunction. — Wilkesbaire V. Coalville Railroad Co., 1875, C. P. Luzerne, 4 Luz. Leg. Rec. 269, 7 Leg. Gaz. 397. A street railway company which has been granted by a municipal corporation possessing the general power to open, improve and grade its streets, the privilege of laying its tracks and running its cars upon certain of the streets, does not take by such grant the right to alter and raise the grade of its track without having first obtained the consent of the municipal authorities. Such a grant does not give the company unlimited control of the streets. An attempt to so raise a track as to obstruct one of the municipal highways will be enjoined. Power of borough councils to authorize use of tracks of another company.— Norristown Ewy. Co. v. Citizens' Rwy. Co., 1887, C. P. Mont- gomery, 3 Montgom. Co. R. 119. It seems that the councils of boroughs as well as of cities are within section 15 of the act of May 23, 1878, providing for the authorization of one street railway company to use the tracks of another. Stopping running of cars— Non-payment of penalty.— Harrisburg v. Harrisburg Ewy. Co., 1868, C. P. Dauphin, 1 Pear. 298. A municipality cannot by ordinance stop the running of street cars because of the company's non-payment of penalty. III. Steam Railroad Companies. See also II. As to the power of railroad companies to occupy highways in general, see Part III, Railroad Comvanies. PaH J7.] PRIVATE COBPOEATIONS, ETC. 491 Power to authorize use of streets may be delegated to munici- pality.— Mercer i;. Pitta., Ft. W. & Chicago Railroad Co., 1859, 12 C 99 The power of the Legislature to authorize the building of a railroad on a street or other highway may be delegated to the authorities of a municlBal corporation. '^ Grant of right to use streets— Compliance with ordinance regulat- mg street railways.— Frankford and Southwark Passenger Railway Co v Philadelphia, 1886, 17 "W. N. C. 245. A municipal corporation has a right to impose upon a railroad company to which it grants the privilege of using its streets for the laying of tracks the obligation to comply with the muni- cipal ordinances regulating passenger railway companies. Carlisle v. Carlisle Gas and Water Co., 1886, 18 W. N. C. 59. A privi- lege voluntarily given by a water company to a municipal corporation to obtain from it, gratuitously, a supply of water for its fire plugs in case of fire, is not irrevocable, especially when the company has reserved the right to change at any time its rules governing the use of water. A charge for such use made subsequently to such revocation may be set off against the amount of a dividend due by the company to the muni- cipality as a stockholder. v. Xeleg^rapli Companies. Bight to erect poles in streets— N. S. Rev. St. p. 1024.— Philadelphia V. Western Union Telegraph Co., 1876, C. P. 33 L. Int. 129, 2 W. N. C. 455. The Act of Congress (R. S. p. 1024) giving to telegraph companies the right to erect poles ete. on any military or post road of the United States does not give such rights in the streets of a city. Municipal regulation of erection of poles. — Philadelphia v. Western Union Telegraph Co., 1876, C. P., 33 L. Int. 129, 2 W. N. C. 455. The Philadelphia ordinance of April 18, 1863, regulating the erection of tele- graph poles etc., in that city, is a reasonable and binding police regulation. Chester v. Western Union Telegraph Co., 1886, C. P. Delaware, 2 Del. Co. 506, 3 Lane. L. Rev. 164. A company operating a telegraph line is within the purview of such an ordinance and although at the time it does no com- mercial business, being used simply for railroad purposes. The reasonableness of such a fee is a question of law. A fee of one dollar for each pole is not unreasonable. VI. miscellaneous. Diversion of the use of property of charitable corporation.— Ply- mouth V. Jackson, 1850, 3 H. 44. The Legislature cannot divert the prop- erty of a corporation erected for religious and charitable purposes to the public uses of a municipal corporation although the latter be chiefly com- posed of the members of the first and its limits are nearly co-extensive with those residence within which entitles to the benefit of the trust for which the first was erected. Same — Fire company. — Bethlehem v. Perseverance Fire Co., 1876, 4 W. N. C. 104. A fire company's property is held in trust by the corporation for thevpurposes expressed in its charter and cannot be controlled or disposed of by tiie municipal authorities. Laying out streets upon turnpike road. — Plan of Third division of Kensington, 1830, 2 R. 445. A street may be laid out by the proper officers of a municipality upon the portion of a turnpike road Mng within the mu- nicipal limits. 492 PRIVATE PKOPEKTY— PROPOSALS. [Part II. PRIVATE PROPEItXY. See Eminent Domain. PROCESS. See Service. PROPERTY OF IttlJBtlCIPAIv CORPORATIONS. See also Streets, Sewers, Bridges, Trust. Taxation of municipal property, see Assessment Etc. Capacity of county commissioners to take and hold land for county. — ^Vamkirk v. Clar^:, 1827, 16 S. & K. 286. County commissioners have sufficient corporate capacity to take and hold lands for the use of the county when brought in to secure a debt, or mortgaged for that purpose. Property dedicated for specific purpose— Diversion to different use — ^Injunction. — Rees v. West Penna. Exposition Society, 1886, C. P. Allegheny, 2 C. C. E. 385. A municipality has no power to divert property dedicated to it for a specific public purpose to different use. An injunction to restrain such diversion may issue upon the application of a property owner who will suffer damage specifically incident to his prop- erty and business by such a diversion. Removal of property. — Philadelphia v. Phila & Beading E. Co., 1868, 8 Sm. 253. Property built by a municipal corporation for its corporate use may be removed when the interests of the community demand it, whether such property was erected under the authority of an ordinance or under the sanction of the State. Rights to property upon consolidation.— Borough of Oil City «. City of Oil City, 1871, C. P. Venango, 3 Leg. Eeg. 407, Leg. Gaz. Eep. 502. Where one municipal corporation is erected from several others by a statute which is silent as to the disposition of the property formerly belonging to the dissolved corporations, but which give to the officers of the new cor- poration control of the department to which such property belonged, the new corporation is entitled to such property, and the dissolved corporation to which it belonged cannot recover it. Abandonment of lease — ^Premium paid by tenant. — Woelpper «. Philadelphia, 1861, 18 L. Int. 77. A t«inant of a municipal corporation cannot recover from it a premium paid by him for the premises, when the municipality in the exercise of its discretion has abandoned or destroyed the premises. Mechanics' lien— County buildings.— Wilson v. Commissioners of Hunt- ingdon County, 1844, 7 W. & S. 197. A mechanics' lien annot be validly filed against a county for materials furnished in the erection of the county buildings. Maxim sic Utere.— Shuter v. The City, 1858, 3 Phila. 228, 15 L. Int. 333. A municipal corporation is subject, in its use of property for public purposes, to the maxim Sic utere tuo ut alienum non laedas. PROPOSALS. See Contracts. Part J7.] PROSECUTION— QUAETEK SESSIONS. PROSECITTIOKJ. For molation of ordinances, see Ordinancts Etc., IV. PUBI^ICAXIOK. Of ordinances, see Ordinances. PVBLIC BVILDII9GS. See Buildings, Property. riTNISHMENX. For molation of ordinances, see Ordinances Etc., IV. PVRPRESXITRE. See Streets. QIJALIPICAXIONS. Of officers and eouncilmen, see Officers Etc., Councils. eUANXiritt MERUIT. See Action and Suit, Contracts, I. QVARE CLAIJSIJM FREGIT. See Action and Suit. Illegal entry on private Ttroperty by township supervisor, see Eminent Domain. QVARXER SESSIONS. See Jurisdiction. 493 494 «U0 WARRANTO — REPAIR. \_Pati II. QITO 'WARRAPiXO. To determirw tiUe to office, see Officers Etc.i Councils. RAII.'WAYS. See Priimte Corporations Etc. Subscription for stock of, see Subscription Etc. REAL ESTATE. See Land. RECORDER. See Officers. RECORDIPIG. Of ordinances, see Ordinances Etc. RECORDS. Mandamus to compel suspended offic^ to deliver, see Officer. REMOirAL. Of officers, see Officers. Of municipal property, see Property. Of railway tracks, see Private Corporations Etc. REPAIR. Liability of municipality for failure to repair streets, bridges etc., see Negligence, Duty of private corporations using streets, see Private Corporations Etc. Pari II.'] KEPEAl, — ROADS. 495 REPEAL. Of special by general statute, see Statutes. Of ordinance, by statute, see Ordinances Etc. Of unused powers or privileges, see Powers Etc. RESCISSIOX. Of contracts, see Contractu. Of municipal sabseription for stock of private corporations, see Subseription Etc. RESOLUTIONS. See Ordinances. RESPOT9SIBLE BIDDER. See Contracts. REVEXUE. See Assessment Etc. REVIVAL. Of jiulgmemt, see Judgment. REVOCATION OF POWERS. Qramted to municipality, see Powers Etc. RIOTS. See Mobs and Biota. ROADS. See Streets, Eminent Domain, Negligence. 496 EULE — SERVANTS. [Part //. RULE. Service of notice of, on mimidpalUy, see Service of Process. RVBiA'WAY ACCIDE^iXS. See Negligence. RURAL la?;d. As.ie.iitment of cost of municipal improvements upon, see Assessment Etc. SALARIES. See Officers. SALE. Of municipal bonds, see Debts and Bonds, Subscription Etc, SCHOOL DISXRICXS. Officers of, see Officers, LiabiUiy for negligence of servants, see Negligence, I. SCIRE FACIAS. 7o remve judgment against municipality, see Judgment. SECURITY. For damages for land entered upon under the right of eminent domain, see Emi- nent Domain. Upon appeal, see Appeal. SERTA^ITS. Of municipalities : see Officers Etc. ; negligence of, see Negligence. Part II.] SERVICE OF PEOCESS—SE WEES. 497 SERVICE OF PROCESS. Cure of defective service by appearance, see Appearance. Misnomer of defendant corporation.-Greer v. Rowley, 1853, D c AU^heny, 1 Crum. 1, 1 Pitts. L. J. 3. Service of process on A. B., mayor of etc., C. D., treasurer of etc., and E. F., regulator of etc., is not valid ser- vice upon a municipal corporation whose charter name is "The mayor al- dermen and citizens of" etc. ' Notice of rule'.— Overseers of Williamsport v. Philadelphia, 1879, 26 Pitts. L. J. 147, 36 L. Int. 86. A municipality cannot be served with notice of a rule through one of its departments ; service must be made upon the municipality as such. SERVICES. Of coundlmen and officers, compensation for, see Councils, Officers. SEX-OFF. See Judgment. SERVERS. Assessment or tax for construction of, see Assessment E. c. Negligent or insufficient construction of, see Negligence. Contract for construction of, see Contracts. Power to construct does not impose obligation— Carr v. Northern Liberties, 1860, 11 C. 324. A power conferred upon a municipal corpora- tion, as to construct sewers, does not impose upon it the obligation to exer- cise the power. See also Grant v. Erie, 1871, 19 Sm. 420. Power to construct— Regulation— Price for use of etc.— Fisher v. Harrisburg, 1854, 2 Grant, 291. A municipal corporation has power to con- struct sewers without a grant of special authority so to do, and having made them, it may, by general rules, regulate the use of them and the price at which any private person may tap them, and by proper penalties protect them against injury or invasion. Parrish v. Wilkesbarre, 1882, C. P. Luzenie, 2 Kulp, 182, 11 Luz. I.eg. Reg. 241. The jrawer of a municipality to ordain and construct common sewers, whenever the general health or cleanliness or other public and com- mon necessity require the same, is to be implied in a grant of power to lay out and enact the same, to regulate the streets, and especially in the power "to make such regulations as may be necessary for the health and cleanli- neas of the city." And such a power implies the power also to incur in- debtedness for such purpose, to pay such indebtedness out of funds raised by general taxation for city purposes, and to issue bonds therefor. 32 MlIEPHY. 498 SEWKKS— SIXKIXG FUND [Part L Removal of railroad for reconstruction of sewer. — Northern Penns E. Co. V. Stone, 1859, 3 Phila. 421, 16 L. Int. 174, 8 Am. L. Reg. O. S. 115 A grant of authority to a railroad company to construct its road through certain portion of a city, is not a revocation of the city's authority to recou struct a culvert in such portion of the city ; and the city may remove th railroad for the purpose of making such reconstruction. Entry on private property for making drains— Security for dam ages. — Strasburg v. Bachman, 1886, 21 W. N. C. 462. An ordinance au thorizing the municipal street committee to enter upon any lot of the mu nieipality for the purpose of cutting or opening drains or ditches and keep ing the same in repair, but making no provision for the ascertainment ant prepayment of damages to the owner, and founded upon no statute makinj such provision, contravenes Article XVI, Section 8, of the State Constitu tion and is void. Construction causing increased flow— Injunction.— Goulden v. Scran ton, 1886, C. P. Lackawanna, 3 Lane. Law Rev. 840. A municipality whid has not paid or secured compensation for the injury, will be enjoined from constructing a culvert in such a manner as to cause au increased discharge of water upon a complainant's land. Blitz V. Ashland, 1887, C. P. Schuylkill, 3 C. C. R. 412. Where no negli- gence is charged a court of equity will not enjoin a municipality from per- mitting the flow of an alleged excess of water through a culvert, whereby private proverty of the complainants is injured. Borough has no power to construct. —McCanslandt;. Greensburg, 1874, C. P. Westmoreland, 21 Pitts. L. J. 133. Without special authority by statute a borough has no power to build sewers, unless their construction is demanded as a necessity for the health or well-ordering of the borough. Defects in, see Negligence. Power to regulate width of, see Streets. SIGXIXG. Of ordinances, sec Ordinances. SINKING Frxb. Taxation of bonds purchased with sinking fund tax, see Assessment Etc., IV. Gardner v. Philadelphia, 1885, C. P., 42 L. Int. 520. The surplus of the smking funds lor the payment of gas loans, remaining in the hands of the trustees of the Philadelphia Gas Works after the payment of such loans, was payable under the ordinance of June 16, 1885. into the city treasury. It could not be validly claimed by the commissioners of the sinking fund of the city. The former sinking funds were no part of the latter, and such ■P*"' ^^-^ SLAUGHTER HOUSES— STREETS. 499 SLAVGHXER HOUSES. See Ordinancen. S9IALI. ISfOXES. Issue of, by munieipality, a