(IJnrnpll ICam ^rl|ooI Hibrary Cornell University Library The original of tiiis bool< 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/cu31924022794162 THE LAW OF BUSIMSS CORPOMTMS INCLTJDINO THEIB ORGANIZATION AND MANAGEMENT; THEIR POWERS AND OBLIGATIONS; THEIR RIGHTS AND PRIVILEGES; THEIR ASSESSMENT AND TAXATION ; THEIR DISSOLUTION AND WINDING UP; RECEIVERS FOR AND JUDICIAL CONTROL OVER, AND THE LIKE, EMBBACING THE NEW YORK BUSINESS ACT; THE NEW YORK MANUFACTURING ACT; THE NEW YORK CONDEMNATION LAW; THE NEW YORK WEEKLY PAYMENT OF WAGES LAW; THE NEW YORK CONSOLIDATED CORPORATION ACT, AND THE NEW JERSEY AND WEST VIRGINIA ACTS. JAMES M. KERR, OF THE NEW YOEK"SBK BANKS & BEOTHEES, NEW YORK. ALBANY, N. Y. 1890. 137^3^7 Copyright, 1890, By JAMES M.' KEBR. TO CHARLES W. DAYTON or THE NEW YOKE BAB THIS WORK IS eespectfuijLY dedicated BY THE AUTHOK. PEEFACE, This volume is founded upon New York statute law, — principally the Acts known as " The Business Act " and " The Manufacturing Act." But the scope of the work far exceeds Ihe narrow limits of those Acts. The object of the author has been to make the volume a convenient manual wherein the busy attorney may find an exhaustive collection of the cases upon the organization and management of business cor- porations ; their powers and obligations ; their rights and privileges ; their assessment and taxation ; their dissolution and winding up, and receivers for and judicial control thereof, and the like. The method of treatment has. been to give the text of the statute in running sections, printed in large type, and underneath these sections, in sub-sections, and in the foot-notes in smaller type, every case wherein any court of this state has passed upon or construed the section in ques- tion, at the same time giving a concise statement of the point decided. An effort has also been made to cull from the vai'ious reports of the different states all cases wherein the same or a cognate point has been discussed and decided. In some instances — as in discussing the rights and liabilities of " promoters " — extensive citations of English authorities are made, for the reason that the adjudicated cases bearing upon the matter in hand are almost if not quite all English. The new chapter added to the Code of Civil Procedure by the General Assembly of 1889-90, prescribing the proceedings ior the condemnation of real property, and the proceedings for the sale of corporate real property, is included in this volume ; as is also the law requiring all corporations (except VI PREFACE. surface railroads) to pay the wages of their help weekly. In Part IV. will be found so much of the consolidated coi-po- ration laws, passed by the last General Assemblj', as relate to the matters treated of in this volume. The chapters of the law here given do not go into effect until Maj', 1891, and there will, doubtless, be many changes, wise and otherwise, bv the General Assembly of 1890-91 ; but it is thought best to give these chapters as they now stand because, they, with the amendments of the coming session of the General Assembly should there be any, will furnish, after May 1, 1891, the whole of the statute law for this state relating to and govern- ing the subjects discussed in this volume. In Part III. the corporation laws of New Jersey and West Virginia are given in full, for the benefit of those persons who find, or think, that the laws of those states furnish advantages not to be found elsewhere to persons organizing corporations. Being convinced, with Pope, that " Order is Heaven's first law," and realizing the fact that this truth appears nowhere so plainly as in the citations in the foot-notes to a legal treatise, the author has adhered to that orderly method in the citation of authorities which met with such a favorable reception in his edition of " Benjamin on Sales." This method is simply to arrange the authorities alphabetically by states, in the inverse order of decision. This method has the advantage of giving the busy lawyer the authorities of his state in one place, and the one decided latest first. The fact that this is a distinc- tively New York book, justifies giving a preference to the New York cases inutile citations, and arranging those from the other states alphabetically thereafter, Canadian and English cases always closing the list where there aie any given. To aid the searcher in determining the relative value of any particular case, as compared with others, the year in which each case was decided is given. , The text is broken up into short paragraphs and each para- PREFACE. vii graph provided with head-lines or catch-words, designed to serve as an index to the section. This is done in the interest of the busy man who wishes to come at once to the point desired. An appendix of forms is added, and no pains have been spared to make the book a practical one, and assistful to the profession. JAMES M. KERR. ASTOB BuiLDINa, 10 Wall Steeet, New Yobe, September 1, 1890. TABLE OF CONTENTS. PART I. BUSINESS COEPOEATIONS. CHAPTER I. ANALYSIS OF BUSINESS ACT. PAGE. Sec. 1. Object 1 Sec. 2. Scope of Act 2 Sec. 3. Preliminary Certificate 2 Sec. 4. Same — " Full Liability " and " Limited Liability " Companies. 3 Sec. 5. Same — Location of Business and Principal Office 3 Sec. 6. Same — Change of principal Business Office 4 SEfc. 7. Corporate Name 5 Sec. 8. Capital Stock 5 Sec. 9. Same — Increase of Stock 5 Sec. 10. Same — Statement of Increase 5 Sec. 11. Same — Diminution 6 Sec. 12. Certificates of Stock 6 Sec. 13. Powers and Privileges 6 Sec. 14. Book for Subscriptions 7 Sec. 15. Meeting of Subscribers — Adoption of By-Laws 7 Sec. 16. Directors— Election of 7 Sec. 17. Same — Cumulative Voting 8 Sec. 18. Same — ^Duty of directors & Sec. 19. Same — Resignation of Directors 9 Sec. 20. Verified Record — Certificate of Incorporation 9 Sec. 21. Organization Tax 9 Skc. 22. License Revoked 10 Sbc. 23. Annual Report 10 Sec. 24. Same — Failure to Make Report 11 Sec. 25. Same — Minority Report 11 Sec. 26. Liability of Stockholders — Full Liability Companies 12 Sec. 27. Same — Limited Liability Companies 12 X TABLE OF CONTENTS. PAGE. 13 Sec. 28. Keorganization Sec. 29. Certificate of Keorganization • • • • ^* Sec. 30. Keorganization of "Full Liability Companies" as "Limited Liability Companies." '■^ CHAPTER II. BUSINESS ACT. Formation of Companies— General Powers— Natural Gas Companies- Certificate of Incorporation— Issuance of License. Sec. 31. Formation of Companies— For what Purpose 18 Sec. 31a. Right to Form Corporation— Method of Formation 18 Sec. 31b. Same— When goes into effect 19 Sec. 31c. Same— The Law Governing 19 Sec. 31d. Same— Transfer by Married Woman 20 Sec. 31e. Same— Liability of Stockholders 20 Sec. 31f. Fifth Avenue Transportation Co. (Limited) 20 Sec. 32. General Powers Conferred on Companies 20 Sec. 32a. Patrons of Husbandry— Sovereigns of Industry 21 Sec. 32b. Powers of Corporations 22 Sec. 32o. Same— Powers Limited to Terms in Grant 26 Sec. 32d. Same— Contract Ultra Vires 25 Sec. 32e. Same— Plea of Ultra Vires 26 Sec. 32f. Same — Foreign Corporations 26 • Sec. 32g. Same— Power to Divide Franchise 27 Sec. 32h. Same— Power to affix seal of corporation ^7 Sec. 321. Same — Mode of exercising power ■ 28 Sec. 32]. Same — Powerto employ women and children 28 Sec. 32k. Same — Power to build private railroad 29 Sec. 321. Same — Power to purchase land 29 Sec. 32m. Same — Power to hold lands in foreign state and invest in stock of foreign companies 29 Sec. 32n. Same — Power to sell entire property 30 Sec. 32o. Same — Power to sell and convey real estate -32 Sec. 32p. Same— Conveyance of corporation — ^Who may execute.. 33 Sec. 32q. Same — Form of deed •. 34 Sec. 32r. Same — Addition of descriptive title 35 Sec. 32s. igame — Form of signature . . ; 37 Sec. 32t. Same — Power to lease rejt estate 38 Sec. 32u. Same — Suit on lease — Pleadings — Res adjudicata 38 Sec. 32v. Same — Power to form combinations — Trusts 39 Sec. 32w. Same — Implied powers 39 Sec. 32x. Same— Power to contract — Implies contracts 39 Sec. 32y. Same — Contracts by officers 40 Sec. 32z. Same — Duties regulated by charterer by-laws — Notice. . 41 Sec. 32ai. Same — Contract by president ~ 42 TABLE OF CONTENTS. xi PAGE. Sec. 32bi. Same — ^For attorney's services 43 Sec. 32c1. Same— Contract by treasurer— Endorsement of papers, etc 43 Sec. 32di. Same— Foreign corporation— Power of treasurer to bind company 44 Sec. 32ei. ■ Same — Supplies furnished superintendent 44 Sec. 32fi. Dealings of corporation — Presumption as to validity. . 45 Sec. 32gi. Same — Execution of promissory notes 47 Sec. 32b^ Same — Insolvent corporation — Judgment note 47 Sec. 8211. game — Execution and endorsement of corporate paper — Proper method of 48 Sec. 32ji. Same — Notes executed by president 50 Sec. 82ki. Same — ^Execution by secretary, treasurer, etc 51 Sec. 3211. Same — Execution by agent — Personal Liability. ....... 52 Sec. 32ml. Same— Use of the word " as " 53 Sec. 32ni. Same — Parol evidence 54 Sec. 32oi. Agent of corporation 54 Sec. 32pi. Same — Notice to agent 55 Sec. 32qi. Same — Agent or officer of one corporation also agent or officer of another corporation or person. . . 56 Sec. 32ri. Same — Presumption of communication by agent 56 Sec. 32si. Same— Notice to president 57 Sec. 32ti. Same— Notice to directors 58 Sec. 32u1. Same — Notice to stoclcholders 59 Sec. 32v1 Same — Raticfiation of employment • — Formal meeting not necessary 59 Sec. 32wi. Same — Evidence of 60 Sec. 32x1. game — Delegation of power 60 Sec. 32yi. Same — Statutory agents — Implied prohibition 60 Sec. .32zi. Same — Notice as to powers 61 Sec. 32a2. Same — ^Duty of company as to agents 61 Sec. 32b2. Same — Apparent authority 61 Sec. 32c2. Same — Private Instructions 61 Sec. 32d2. Acts and contracts of officers and agents 61 Sec. 32e2. Same — Ratification 62 Sec. 32f2. Same — Previous assent 62 Sec. 32g'. Same — Ratification by acquiescence 62 Sec. 32h2 Same— Estoppel 63 Sec. 321^. Agents — Frauds and misrepresentations. 64 Sec. 33. Hot water, hot air, steam-heating companies 65 Sec. 33a. Steam-heating companies — statutes 66 Sec. 34. Natural gas companies 66 Sec. 35. Same — Power to dig trenches and lay pipes 66 Sec. 36. Same — Sanction by city authorities 67 Sec. 37. Same — Surveys — Compensation 68 Sec. 38. Same — Map of route — Signing and filing 68 Sec. 39. Same — Commissioners to assess damages — Report 68 Sec. 40. Same — Confirmation of report — Deposit by corporation 70 XU TABLE OF CONTENTS. page- Sec. 41. Certificate of incorporation 70 Sec. 41a. Infringement of corporate name 70 Sec. 41b. Cliange of corporate name — Corporation may apply to supreme court for 71 Sec. 41c. Same — Petition, and notice of application 71 Sec. 41d. Same — Power of court to order a change of name 72 Sec. 41e. Same — When change of name to take effect 72 Sec. 41f. Same — Change not to affect pending suits, rights or liabilities 72 Sec. 41g. Same — Discretion of cotn-t 73 Sec. 41h. Capital stock 73 Sec. 41i. Same — Shares of stock 73 Sec. 41j. Defective organizations 73 Sec. 42 License — Secretary of state to issue 74 CHAPTER IIL BTJSiNESS ACT {continued). Opening Subscription Books — By-Law — Certificate of Incorporation — Fail- ure to Organize. Sec. 43. Commissioners to open subscription books — First meeting of subscribers 76 Sec. 43a. Subscriptions to stock , 77 Sec. 43b. Same — Subscriptions in memorandum book 78 Sec. 43c. Same — Agreement to subscribe 78 Sec. 43d. Same— When subscription void 79 Sec. 4;^e. Same — Failure to pay ten per cent 79 Sec. 4.3f. Same— Payment by check 80 Sec. 43g. Same — ^Who may take subscriptions 80 Sec. 43h. Same— Who may subscribe , 81 Sec. 43i. Same — Irregularity and informality 84 Sec. 43j. Same — Statutory regulation 85 Sec. 43k. Same — Implied promise to pay 86 Sec. 431. Same — Conditional subscription 87 Sec. 43m.Same — Condition precedent 88 Sec. 43n. Same — Condition subsequent 88 Sec. 43o. Same — Conditions in charter 89 Sec. 43p. Same — Parol agreements 89 Sec. 43q. I^me — Frauds in subscription for stock — Signing ficti- tious name 90 Sec. 43r. Same — Effect on subscription 90 Sec. 43s. Same — False and fraudulent representations 91 Sec 45t. Same — When binding 93 Sec. 43u. Same — How misrepresentations arise 94 Sec. 43v. Same — Fraudulent agreements 94 Sec. 43w. Same — Substitution of stockholders 96 Sec. 43x. Same — Withdrawal »f subscription 96- TABLE OP CONTENTS. XUl PAGE. Sec. 43y. Same — Payment of subscription — Action to recover 96 Sec. 43z. Same — Insolvent corporation — Kight of creditors to en- force 98 Sec. 43ai. Same — Liability of members — Unpaid subscriptions 100 Sec. 43b^. Same — Agreements exempting from liability 103 Sec. 43c1. Same — Statutory liability of officer 103 Sec. 44. By-laws — What they must provide 103- Sec. 44a. Same — ^Definition of 103 Sec. 44b. Same — ^Power to make and enforce 104 Sec. 44c. Same— Mode of adoption of by-laws 105 Sec. 44d. Same — Extent, force, and effect of by-laws 106 Sec. 44e. Same — Construction lOt Sec. 44f. Same— Validity lOT Sec. 44g. Same — By-laws regulating membership 108 Sec. 44h. Same — By-law controlling acts of members 10& Sec. 44i. Same — By-laws as to assessments — ^When void 109- Sec. 44]. Same — Invalid by-law — Injunction to restrain enforce- ment 109 Sec. 44k. Same — By-law regulating signing of notes — Lack of Secretary's signature 110 Sec. 441. Same — Void in part 110 Sec. 44m. Same — Unreasonable by-law void 110 Sec. 44n. Same — By-law inconsistent with general law HO- Sec. 44o. Same — By-law restricting right to sue Ill Sec. 44p. Same — Repeal of by-law 112 Sec. 44q. Same— Notice of by-laws— When presumed 112 Sec. 44r. Same— Failure to provide by-laws for annual election. . llii Sec. 44s. Same— Salary of officers— Directors 115 Sec. 44t. Same — Salary of president 114 Sec. 44u. Same— Salary of agents and servants 115 Sec. 45 Commissioner's report — Certificate of incorporation 115 Sec. 45a. Organization tax 117 Sec. 45b. Incorporation and powers 117 Sec. 46. Failure to organize — Revocation of license 118 Sec. 46a. Failure to organize — Recovery of money advanced . 118 Sec. 46b. Forfeiture and surrender of charter 118- CHAPTER rV. BUSINESS ACT {continued). Name of corporation— Officers and directors — Capital stock— Subscript tions — Certificate and transfer. Sec. 47. Table of names of corporations— Publication in session laws 121 Sec. 4'7a. Selecting name— Method of 121 Sec. 48. Directors and officers— Number and election of 121 Sec. 48a. Officers of corporation— Duties and liabilities 122 XIV TABLE OP CONTENTS. PAGE. Sec. 48b. Same— Election and acceptance 123 Sec. 48c. Same — Failure to elect 123 Sec. 48d. Same — Holding over 123 Sec. 48e. Same — Acts of officer — Presumption of authority 124 .Sec. 48f. Same — Actions against officers 125 .Sec. 48g. Same— Misfeasance of officers- Action of stock- holder , 125 Sec. 48h. Same — Default of officers — Action by stockholder 126 :Skc. 48i. Same — Directors— Dixtiesand liability of- authority... . 127 Sec. 48j Same — Compensation — Auditing own bill 128 Sec. 48k. Same — Tenure of director — "Or" construed to mean "And" 129 Sec. 481. Same — Resignation of directors 129 ; Sec. 48m. Same— Care required of directors 130 :Sbc. 48n. Same — Degrees of negligence 131 ;Sec. 48o. Same — Liability for acts of officers 131 Sec. 48p. Same — Liability for loss 131 :Sbc. 48q. Same— Breach of trust or neglect of duty — Eemedy 132 Sec. 48r. Same — Liability for false and deceptive statements — Misrepresentation, etc 133 Sec. 48s. Same — Liability of stockholders — Parties 135 Sec. 48t. Same — Liability to creditors 135 Sec. 48u. Same — Unauthorized business 136 Sec. 48v. Same — Relation of directors to corporation 136 Sec. 48w. Same — ^Delegation of authority 136 Sec. 48x. Same — As trustees in dissolution 137 Sec. 48y. Same — Breach of trust — Assignment of corporate property 137 Sec. 48z. Same— Criminal liability l.$8 ■Sec. 49. Same — Number of directors in corporation for opera, etc 138 Sec. 50. Same — Quorum 139 Sec. 51. Capital stock — Subscriptions to — When and how payable 139 Sec. 51a. Payment of capital stock — Misconduct of directors 140 Sec. 51b. Same— Time of 140 Sec. 51c. Same — Liability to creditors 141 Sec. 51d. Same— Payment in cash ; 141 ;Sec. 51e. Same — Under the business corporation act 141 Sec. 51f. Same — Payment in cash — Constraction of representa- tion 142 Sec. ^g. Same — Action to enforce 142 Sec. 51h. Same — The tender of a certificate 143 Sec. 51i. Same — ^Provisions in articles of subscription 143 Sec. 51]. Same — Action by receiver to enforce 144 Sec. 51k. Same — Allegations and proof 1.14 Sec. 511. Same — Exhaustion of liability 144 Sec. 51m.Same — Forfeiture of stock 144 Sec. 51n. Same— Sale of stock — Fraud of agents — Parties to action 145 TABLE or CONTENTS. XV PAGE. Geo. 52. Certificate of stock — Execution and transfer 145 Sec. 52a. Fradulently issuing stock 146 Sec. 52b. Same— Over-issue of stock— Suits for damages — ^Evi- dence 146 Sec. 52c. Same — Spurious stock — Liability for 147 Sec. 52d. "Common " and "Preferred " stock 147 Sec. 52e. Certificate of stock 14S Sec. 52f. Same— Wbere issued 149 Sec. 52g. Same — By whom issued 149 Sec. 52h. Same — Refusal to issue 149 Sec. 52i. Same — Measure of damages for refusal to issue — Where stock not fully paid up 150 Sec. 52j. Same — Lost or destroyed certificates — Issuance of Dupli- cates 150 Sec. 52k. Same — Summary order that duplicate certificates be is- sued—Giving security — Enforcing obedience to order 151 Sec. 521. Same — Jurisdiction of court 152 Sec. 52m. Same — Original issue to two trustees — When application denied 152 Sec. 52n. Same — Form of decree 152 Sec. 52o. Same — By-law regulating 152; Sec. 52p. Same — Transfer of stock and effect 15.3- Sec. 53q. Same — Transfer contrary to by-law or charter 153- Sec. 52r. Same — Lien for debt due 15J Sec. 52s. Same— Transfer in blank 154 Sec. 52t. Same — ^Assignment to be entered on books of company. 154 Sec. 52u. Same — Title of assignee 156 Sec. 52v. Same — Purchaser in good faith 156 Sec. 52w.Same — By-law interfering with right of transfer 156 Sec. 52x. Same — Evidence of authority to transfer 157 Sec. 52y. Same — Unauthorized transfer 157 Sec. 52z. Same — Transfer under forged power — Estoppel 157 Sec. 52a^ Same— Recovery of damages by corporation 158 Sec. 52bi Same— Refusal to transfer — Remedy , 159 Sec. 51c1 Same — Evidence of transferree's right* 160- Sec. 52di Same— Irregular transfer— Ratification 160 Sec. 52ei Same— Subsequent obligations — Liability of transferree.. 161 Sec. 52fi Same — Insolvent purchaser — Liability of transferror .... 161 Sec. 52g^ Same — Injunction to prevent selling or voting stock. . . . 162 XVI TABLE OP CONTENTS. CHAPTER V. BUSINESS ACT (continued.) Sorrowing money — Stock and bonds — Increase and Reduction of Capital- New shares — Annual report — Dividends — Loans— False certificate — In- debtedness, t PAGE. Sec. 53. Borrowing money and issuing bonds 165 Sec. 53a. Power of corporation to borrow money 165 Sec. 53b. Same — Defence of want of power to make — Burden of proof 166 Sec. 53c. Same — Showing purpose 166 Sec. 53d. Same — Mortgage by corporation 166 Sec. 53e. Same —Misappropriation 168 Sec. 53f. Same — Burden of proof 168 Sec. 53g. Same— Fraudulent issue of bonds 168 Sec. 53b. Same — Accounting for proceeds— Creditor cannot compel 169 Sec. 54. Stock or bonds — For what issued 169 Sec. 54a. Action Against Directors — When Action will Lie 169 Sec. 54b. Same — False and Fabricated Certificate 169 Sec. 54c. Same— Stocks and Bonds — Issued for Property 169 Sec. 54d. Same — Bonds as Bonus 170 Sec. 55. Increase and Reduction of Capital Stock 171 Sec. 55a. Capital Stock — How Increased or Reduced 172 Sec. 55b. How Increased — Amount Limited 172 Sec. 55c. Diminution of Capital Stock— Effect of Act 172 Sec. 55d. Same — Notice of Meeting 173 Sec. 55e. Same— Stock How Reduced 173 Sec. 55f. Same — Distribution among stockholders 174 Sec. 55g. Same — Companies organized prior to passage of Business act — Method of reducing stock 175 Sec. 55h. Same— Reduction of capital stock of limited company. . 175 Sec. 551. Increase of capital stock — Statutory requirements — Informalitiess - 175 Sec. 55j. Same — Fictitious value — Stock dividends 176 Sec. 55k. Same — Liability of shareholders 176 Sec. 56. Increase of number of shares of stock 176 Sec. 57. Proceedings to increase Number of shares— Vote of stock- holders 177 Sec. 58. New shares of stock— Distribution 177 Sec. 59. Corporation account, etc., books — Right to inspect 178 Sec. 59a. Stockholders — Right to examine books 178 Sec. 5flb. Same — Refusal to produce for inspection 179 Sec. 59c. Books of account of a corporation — Mutilation or de- struction of 179 Sec. 60. Book of stockholders— Contents 180 Sec. 61. Annual report — Penalty for neglect to file 181 Sec. 61a. Failure to file annual report — Liability of directors .... 183 TABLE OF COJSIBNTS. Xvil PAGK. Sec. 61b. Same — When liability attaches — Successive failures to file report 183 Sec. 61c. Same — Liability in nature of a penalty — Debt of cor- poration : 184 Sec. 61d. Same— Concurrence of majority of directors 184 Sec. 61e. Same — Preparation of report and placing in hands of secretary for deposit 184 Sec. 61f. Same — Evidence — Certificate of secretery of state 184 Sec. 61g. Same— Termination of liability 185 Sec. 61h. Same — Liability to bona fide purchaser 185 Sec. 61i. Same — Liability to co-director 185 Sec. 61j. Same — Abatement of action 185 Sec. 61k. Same— After appointment of receiver 186 Sec. 611. Same— Director signing is an officer 186 Sec. 62. Dividends , 186 Sec. 62a. Same— Definition 187 Sec. 62b. Same— From what declared— Net profits 188 Sec. 62c. Same -Declaring dividends— Discretion of Directors 189 Sec. 62d. Same— In what payable 190 Sec. 62e. Same— Eight to 191 Sec. 62f. Same— To whom payable ' 192 Sec. 62g. Same — Right of tenant for life to receive 192 Sec. 62h. Same — When suit may be brought for 193 Sec. 62i. Same — Eights of non-shareholders , 193 Sec. 62j. Same — ^Dividends improperly paid — Eecovei^ 194 Sec. 62k. Same — Provisions of penal code 194 Sec. 63. Dividends by insolvent company — Directors liable for debt. . 195 Sec. 64. Loans to stockholders prohibited 195 Sec. 65. False Certificate or report— Officers' Liability therefor 195 Sec. 65a. Who are officers— When statutory liability arises 196 Sec. 65b. False report— Liability of trustees or directors and Offi- cers ^^^ Sec. 65c. Same— Action to enforce liability— Eevivor 197 Sec. 65d. Same— False certificate— Liability of Directors 197 Sec. 65e. Same— Criminal liability 197 Sec. 65f . Same— Limitation of liability of trustee 197 Sec. 65g. Same— Knowledge of falsity 197 Sec. 65h. Same— Meaning of word " False." 198 Sec. 65i. Same— Purpose of making 198 Sec. 65]. Same— Pleading.' 199 Sec. 65k. Same— Abatement of action 199 Sec. 66. Indebtedness not to exceed capital stock— Liability 199 Sec. 66a. Indebtedness - Excess of capital stock — Liability of directors 1"" Sec. 66b. Same— Liability— Joint and not several 200 Sec. 6fic. Same— Determining amount ofUability— Debt to director 200 Sec. 66d. Same— Pleadings 201 Sec. 67. Executors, etc., not personally liable for debts of company. . . 201 xviii TABLE OF CONTENTS. CHAPTER VI. BUSINESS ACT (continued). Eleetims— Voting— Vote of Married Woman— Failure to Elect— Inspec- tion of Elections— Liability of Stockholders— Extension of Corporate Existence— Taxation of Corporation. PAGE. Sec. 68. Elections— Wlio may vote at 204 Sec. 68a. Same— Method of voting 205 Sec. 68b. Same — Voting by proxy 206 Sec. 68c. Same — Rejection of proxies 206 Sec. 68d. Same— Delegation of power 207 Sec. 68e. Same— Married women— Wben to vote stock 207 Sec. 69. Limitation of stockholders liability for debts of company 207 Sec. 69a. Members and stockholders— Liability of stockholders for debts 208 Sec. 69b. Same— When creditor's remedy suspended 20S Sec. 70. Annual election of directors— How and where held 209 Sec. 71. Same— Failure to elect— Directors hold over 210 Sec. 71a, Same— Fault of officers 210 Sec. 71b. Same— Holding over 210 Sec. 72. Same— Inspectors of election — Oath of 210' Sec. 73. Duration of corporate existence — Extension 211 Sec. 74. Taxation — Where corporation taxable 211 Sec. 74a. Organization of corporations and increase of capital — Tax on 212 .Sec. 74b. Taxation of corporations 212 Sec. 74c. Same — The personal estate of 212 Sec. 74d. Same— The real estate of 212 Sec. 74e. Same— Water-power 21S Sec. 74f. Same— Foreign corporation — "Doing business within the State " 213 Sec. 74g. Same— Limited to State taxation 213 Sec. 75. Same — What companies liable to taxation 214 Sec. 75a. System of taxing corporations— Change of statutes 214 Sec. 75b. " Capital stock ' '—Definition of phrase , 214 Sec. 75c. "Moneyed corporation"— Definition of term 214 Sec. 75d. Capital to be assessed at actual value 215 Sec. 75e. Same— Method of ascertaining value 215 Sec. 75f. Same— Nominal amount of capital paid in 216 Sec. 75g. Income not equal to expenditures 216 Sec. 75h. ainrplus earnings and net profits 217 Sec. 75i. Franchise — Property used in connection with 217 Sec. 7oj. Assessing property without state 217 Sec. 75k. Non-resident corporations 217 Sec. 751. Mode of assessing corporations in cities 218 Sec. 76. Same— Officers to deliver statements to assessors 218 Sec. 76a. Corporate statement to assessors 219 Sec. 76b. Same — Omission to furnish corporate statement 219 TABLE OF CONTENTS. Xir PAGE. Sec. 76c. Statement and aflSda-yit of owner as to value — ^Not bind- ing on assessors 219 Sec. 76d. Improper assessment — Hearing 220 Sec. 76e. Power to correct errors in assessment 220 Sec. 77. Same — To comptroller 221 Sec. 78. Same — Penalty for failure to furnish statement 221 Sec. 78a. Penalty for failure to make statement 221 Sec. 78b. Same — Power of coiirts to impose other penalty. . j 222 Sec. 79. Same— Suit for penalty 222 Sec. 80. Same — Companies how assessed 222 Sec. 80a. Extension of statute 223 Sec. 80b. Taxation of capital stock — Actual value — Exemptions . . 224 Sec. 80c. Ascertaining value of capital 225 Sec. 80d. Same — ^Eules for fixing value 225' Sec. 80e. Kule as to taxation — Change of 226 Sec. 80f . Deduction of Indebtedness 226 Sec. 80g. Stock paid in or secured to be paid in 226 Sec. 80h. Real estate — How assessed 226 Sec. 80i. Surplus profits — Definition 227 Sec. 80j. Same — Assessment of 22T Sec. 80k. Same— Certificates to stockholders, for 227 Sec. 801. No deduction is to be made for losses of capital 228 Sec. 80m. Commuting taxes 228 Sec. SOn. Application for reduction 228 Sec. 80o. Same — Deduction of real estate 22!> Sec. 81. Same — How taxes to be stated and collected 229 Sec. 82. Same — Board of supervisors — Return to comptroller 230 Sec. 83. Same — Collector — Demand of payment of tax 230 Sec. 8.3a. Certain counties — Special provisions 230 Sec. 83b. Same — Demand necessary — Commencing action not a demand 2.31 Sec. 84. Same — How taxes paid 231 Sec. 85. Same — Return of collector to treasurer — Affidavit of demand, etc 231 Sec. 86. Same — Certificate of treasurer to comptroller 232 Sec. 87. Same — Comptroller to furnish list to attorney-general — Ac- tion in supreme court 232 Sec. 88. Same — Proceedings on filing petition — Sequestration of prop- erty 232, Sec. 88a. Receiver in foreclosure proceedings — Direction to pay taxes 2.32 Sec 89. Same — Action in other courts 233 Sec. 90. Annual report to comptroller — When to be made — Where dividend has not been dedlared — Estimate and appraisal of secretary — Certificate of appraisal and copy of oath 233 Sec. 90a. Constitutionality of statute 235 Sec. 90b. Tax for state purposes only — Liability for the county or municipal taxes 235- XX TABLE OF CONTENTS. PAGE. Sec. 90c. Tax upon foreign corporations — Carrying and manufac- turing within this state 236 Sec. 90d. Taxing franchise 236 Sec. 90e. Same — Assailing tax 237 Sec. 90f . Same — Correction of errors 237 Sec. 91. Same — Failure to make report — Comptroller to add ten per centimi — Failure for two years to make annual report — Report to governor 238 cSec. 92. Same — Annual tax — Amount of 239 Sec. 92a. Exemptions from taxation 240 Sec. 92b. Same— Gas Light Co 241 Sec. 92c. Same — Ice company. 241 Sec. 93. Same— When to be paid 241 Sec. 91. Same — Lands and real estate of corporation — How taxed — Capital stock exempt 241 -Sec. 95. Same — Basis of tax — Capital employed — What report must state— Wlien comptroller may fix amount 242 Sec. 96. Same — Failure to make report — Examination of books and fixing tax — Penalty 242 Sec. 96a. Dissatisfaction of comptroller — Basis of computation. . . 243 Sec. 96b. Penalty 244 ■Sec. 97. When comptroller may issue subpoena —Failure to obey — Pun- isliment 244 Sec. 98. Adjustment of taxes and penalties — What covered — Proviso as to payment 246 Sec. 99. Same — Settlement by comptroller — Notice — Interest 247 Sec. 100. Same — Settlement of taxes — Notice 248 Sec. 101 — Determination of comptroller — Right to review 248 Sec. 101a. Right to review — Writ of certiorari 249 Sec. 101b. Same — Prior application to assessors 250 Sec. 101c. Same — Time of application 250 Sec. lOld. Same— Form of petition 250 Sec. lOle. Same — Parties to 252 Sec. lOlf. Same — Notice of granting 252 Sec. lOlg. Same — Form of the writ 252 Sec. lOlh. Same— When to issue 252 Sec. lOli. Same — To whom sliould be issued 253 Sbc. lOlj. Same — Return of writ 253 Sec. 101k. Same— Inclusive of power to take evidence 254 Sec. 1011. Same — Hearing on retijm — Proper practice 254 Sbc. 101m.*ame — Assessment-roll and affidavit — Failure to re- turn 255 Sec. lOln. Same— Evidence as to value — Selling price of adjoining property 255 Sec. lOlo. Appeal to general term 255 Sec. lOlp. Appeal to court of appeals 256 Sec. 102. Same — Payment of illegal taxes — Adjustment of account 257 ^BC. 103. Same — Action of comptroller— Review in superior court. . . . 257 TABLE OP CONTENTS. xxi PAGE. Sec. 104. Same — Warrant for collection of taxes— When Issued — How enforced 258 Sec. 105. Same — Evasion of law — Duty of attorney-general and comp- troller 259 CHAPTER VII. BtrsDrESS ACT {continued.) Sec. 106. Charging principal place of business 262 Sec. 107. Reorganization — Mode of proceeding under business corpo- ration act 263 Sec. 107a. Reorganization — Payment of tax 265 Sec. 107b. Extension of corporate existence 266 Sec. 108. Same^What companies may reorganize 267 Sec. 109 Same — Reorganization of "full liability" companies as " limited liability " companies 267 Sec. 110. Same — Proceedings necessary for reorganization ;. . 268 Sec. 111. Same — Payment of capital stock 269 Sec. Ilia. Reorganized company — Payment of capital stock 270 £ec. 112. Consolidation of corporations — Agreement of directors 270 Sec. Ilia. Same— Effect of consolidation 271 Sec. 112b. Same — Suit to restrain 273 Sec. 112c. Same — Consent of the state 274 Seo. 112d. Same — Consent of stockholders 276 Sec. 112e. Same — Rights and privileges of new corporation 277 Sec. 112f. Same — Liabilities 278 Sec. 112g. Same — Conveyance of patent— Validity of deed 278 Sec. 112h. Same — Action pending — Abatement and revival 279 Sec. 1121. Same— Illegal combinations—" Trusts." 279 Sec. 112.1. Same — Trust certificates 279 Sec. 112k. Same-— Sugar Refinery — Object of combination 280 Sec. 1121. Same — Cotton seed oil trust 280 Sec. 112m Same — Gas trust 281 Sec. 112n. Same — Contracts to form a monopoly 281 Sec. 112o. Same — Combination as to selling price 282 Sec. 112p. Same — Agreement not to compete 282 Sec. 113. Same — Approval of stoockolders — Appraisement of stock 283 Sec. 114. Same— When completed... .^. 285 Sec. 11.5. Same — New corporations — Powers and liabilities 286 Sec. 116. Same — Rights, Privileges and Franchises 286 Sec. 117. Same— Rights of creditors — Obligation of old companies — Liability of stockholders 287 Sec. 117a. Same— Liability after dissolution 288 Sec. 118. Same— Business of New Company • 288 Sec. 119. Classification of corporations 288 Sec. 120. "Full liability companies." 289 Sec 120a. Same— Liability — Transfer — Recission of contract 289 XXU TABLE OP CONTENTS. PAGE. Sec. 120b. Same— Individual liability of stockholders 290 Sec. 121. " Limited liability companies." 290 Sec. 122. Word "Limited" — Use in Corporate name— Penalty for .Omission 290 Sec. 123. "Limited Liability" Companies— Individual Liability of stockholders '. 291 Sec. 12.3a. Extension of time for the payment of capital stock 294 Sec. 123b. "Debts" 294 Sec. 123c. Construction of " Business Act." 294 Sec. 123d. Stockholder's liability— To creditors 295 Sec. l?3e. Same— To servants 296 Sec. 123f. Same-Onlease 296 Sec. 123g. Same — Fixing date of lease 296 Sec. 123h. Same— Action against stockholders — Injunction to restrain 296 Sec. 123i. Right to sue stockholders — Several 296 Sec. 123j. Same — Liability of directors and stockholders — -When liability ceases 297 Sec. 12-3k. Same— Complaint — Sufficiency of 297 Sec. 1231. Same — When right of action accrues 297 Sec. 123m. Same— Payment in full ". 297 Sec. ]23n. Same — " Limited Liability " company 298^ Sec. 123o. Same — Evidence — Goods sold 299 Sec. 123p. Same — Compulsory reference 299 Sec. 123q. Same — Eemedies of creditor 300 Sec. 123r. Annual report— Failure to file— Incoming directors 301 Sec. 123s. Same — Compulsory reference 301 Sec. 124. Same— Dissolution — Liability not impaired by 391 Sec. 124a. Dissolution by legislature 302 Sec. 124b. Dissolution of corporations ,302, Sec. 124c. Same— When dissolution takes place 305- Sec. 124d. Same — Interest of stockholders 307 Sec. 124e. Same — Liability of stockholders 307 Sec. 124f. Same — Creditor's remedy on dissolution 30S Sec. 124g. Same — Effect at common law 308 Sec. 124h. Same — Effect on property 310; Sec. 124i. Same — Effect on suit pending , 310 Sec. 125. Extension of company' s business— New certificate 310 • CHAPTER VIII. DISSOLUTION OP COEPOKATIONS — VOLUNTARY DISSOLUTION. Sec. 126. Voluntary dissolution— When directors may petition for 313 Sec. 126a. Jurisdiction to dissolve corporation 313 Sec. 126b. Same— Statutory proceeding 314 Sec. 126c. Same — Application for dissolution 315 Sec. 126d. Same — Resolution of directors 315 TABLE OF CONTENTS. xxiii PAGE. Sec. 126e. Same— Insolvency of corporation 316 Sec. 126f. Same— New York doctrine 317 Sec. 126g. Same— Discretion of court 317 Sec. 1261i. Same— Remedy of creditors 317 Sec. 12()i. Same— Who may be trustees— Executors 317 Sec. 126j. Same— Power of trustees 318 Sec. 127. Same — Where directors are equally divided .318 Sec. 128. Same — Petition for dissolution— contents of 319 Sec. 128a. Same — Requisites of Petition for Dissolution 320 Sec. 128b. Same — Presentation of — Statutory provisions — What a compliance with 321 Sec. 128c. Same — Inventory — Omission of items 321 Sec. 129. Same— Affidavit to be annexed 322 Sec. 130. Same — Presentation of petition — Order to show cause — Temporary Receiver — Notice of application for — Injunc- tion 322 Sec. 180a. Same — Order to show cause — Form and contents of. . . 324 Sec. 130b. Same— Notice of order— Hearing 323 Sec. 130c. Same — Injun-ction — Vacating order 325 Sec. 1.30d. Same — Service of injunction — Mode of 325 Sec. ISOe. Same — Receiver — When appointed 325 Sec. 131. Same— Order to be published 326 Sec. 132. Same— Order to be served on creditors and stockholders 326 Sec. 132a. Same — Service of copies of papers 326 Sec. 133. Same — Hearing — Appointment of referee 327 Sec. 133ai Same — Failure of referee to report 327 Sec. 134. Same — Original papers may be issued 328 Sec. 135. Same — Application for final order 328 Sec. 136. Same— Final order 328 Sec. 136a. Same— Appointment of receiver — When made 329 Sec. 136b. Same — Sale and distribution of assets 329 Sec. 136c. Same — Stockholders — Rights of majority 330 Sec. 137. Same — Certain sales, etc., void 330 Sec. 137a. Same — Transfer of property — Void after petition for dissolution - 330 Sec. 137b. Same — Judgment obtained by confession— preferences. 331 CHAPTER IX. DISSOLUTION OP COBPOEATIOIf — ^RECEIVEKS. Sec. 138. Receivers — Who may be appointed — Bond 334 Sec. 138a. Same — Appointment of 3.34 Sec. 138b. Same — Jurisdiction to appoint 335 Sec. 138c. Same— When appointed 336 Sec. 138d. Same — Corporation ceased to act — Use of property by officers 337 Sec. 1 3Se. Same — Who may have appointed 338 xxiv TABLE OF CONTENTS. PAGE. Sec. 138f. Same — Who may be appointed receivers — OflBeers and 338 stocldiolders 3>8 Sec. 138g. Same — Effect of appointment — Dissolution of corpora- tion 338 Sac. 138h. Same — Characterof receiver 839 Sec. 138i. Same— Duty of receiver — Claims upon funds 339 Sec. 138j. Same— Resistance of appointment— Grounds of 339 Sec. 138k. Same— Title of property 339' Sec. 1381. Same— Wliat property passes 340 Sbo. 138m. Same— When property passes 34(> Sec. 138n. Same — Filing bond nunc pro tunc 341 Sec. 138o. Same— Torts and crimes 342 Sec. 139. Same— Interests and rights of 342 Sec. 139a. Same— Appointment of a receiver— Jurisdiction to appoint 342 Sec. 139b. Same— Vesting title 342 Sec. 139c. Same — When appointment takes effect 343 Sec. 139d. Same — Statutory provisions— Compliance with neces- sary 343 Sec. 139e. Same— Filing bond 343 Sec. 139f. Same — Title to goods ordered and paid for 344 Sec. 139g. Same — Instructions to receiver — Application to court for. , 344 Sec. 139h. Same — In cases of insolvency 344 Sec. 140. Same — Power and authority of 345 Sec. 140a. Same — Duties and powers of receivers 345 Sec. 140b. Same — Authority to sue 345 Sec. 110c. Same— Suit by receiver to set aside judgment by collu- sion — complaint — service 34& Sec. 140d. Same. — Suit upon cancelled note. 347 Sec. 140e. Same— Suit upon notes— Foreign attachment of debt. . 347 Sec. 1401 Same — ^Examination of debtor — ^Warrant of — Petition for , 348 Sec 140g. Same — Compromise of disputed claims 349 Sec. 140h. Same— Sale of property by 349 Sec. 140i. Same — Directions as to sale 350 Sec. 140j. Same— Setting aside sale 850 Sec. 141. Same — Collection of unpaid subscriptions 351 Sec. 141a. Same — Action to recover subscription — Ten percentum 351 Sec. 141b. Same. — Unpaid subscription — Action to enforce pay- ment* 351 Sec. 141c. Same— Forfeiture 352 Sec. 141d. Same— Payment in full 353 Sec. 141e. Same— Restriction 353 Sec. 1411 Same — ^Who to be proceeded against 353 Sec. 141 g. Same — Oppressive action — Favoritism 353^ Sec. 142, Same — Notice of Appointment — Contents of — Publication of Notice 354 TABLE OP CONTENTS. XXV PAGE, Sec. 143. Same— Accounting to receiver for property, etc 354 Sec. 144. Same — Power to settle controversy — Appointment of Refer- ee 355 Sec. 144a. Same — Compulsory reference 355 Sec. 145. Same— Duties and obligations — Meeting of Creditors — Ad- justment of accounts 355 Sec. 145a. Same — Duty as to allowance of claims 356 Sec. 145b. Same — Duty to make final report 356 Sec. 146. Same — Open and subsisting contracts — Cancellation and discharge 356 Sec. 146a. Same — Subsisting contracts — Retaining assets to meet. . 357 Sec. 147. Same — Commissions and disbursements 357 Sec. 147a. Same — Commission — Allowance by court. 357 Sec. 147b. Same — Acting as attorney — Compensation 358 Sec. 148. Same — Retaining money in hands for certain purposes 358 Sec. 149. Same — Suits pending — Retaining amount involved 358 Sec. 150. Same — ^Distribution of assets 359 Sec. 150a. Same — Right to share in — How determined 359 Sec. 150b. Same — Distribution — How made 359 Sec. 150c. Same — Right to participate— When barred 360 Sec. 150d. Same — Priority — Tax claims 361 Sec. 150e. Same — Judgment by confession 361 Sec. 151. Same— Second and final dividend — Notice of 361 Sec. 151a. Same — Final report 362 Sec. 152. Same — Manner of making 362 Sec. ] 52a. Same — Participating in second dividends 362 Sec. 153. Same — Liability on subsisting contracts 363 Sec. 454. Same — Distribution of surplus 363 Sec. 155. Same — ^Determination of suit pending — Disposition of amount retained 363 Sec. 156. Same— Control — Accounting — Filling vacancy 364 Sec. 156a. Same — Direction and control 364 Sec. 156b. Same — Application for direction 364 Sec. 156c. Same — Removal — Appointment of successor 365 Sec. 157. Same — Final account 365 Sec. 158. Same — Notice of Final account — Where published 365 Sec. 159. Same — Reference on — ^Duty of Referee 366 Sec. 160. Same — ^Accounting of Receivers — Passing accounts 366 Sec. 160a. Same — Fees of — Allowance on mortgage foreclosure. .. 366- CHAPTER X. DISSOLtmON OF COBPOBATION— INVOLtTNTABT DISSOLUTION. Sec. 161. Sequestration, etc., — Action by judgment creditor for 371 Sec. 161a. Sequestration of effects — How secured — Jurisdiction... 372' Sec. 161b. Same — Who may apply for 373 Sec. 161c. Same — Motion for sequestration 374 XXvi TABLE OF CONTENTS. PAGE. Sec. 161d. Same— Jurisdiction of court to appoint Receiver 374 Sec. 161e. Same— How appointed ^^^ Sec. 161f. Same— Unliquidated debt— Set-off 375 Sec. 161g. Same— Action by receiver against stockholder— Dis- charge of receiver °'^ Sec. 161h. Same— Surrender of franchise, '. 376 Sec. 162. Same— Action to dissolve — Grounds for 376 Sec. 162a. Same — Pleadings 377 Sec. 162b. Same— Parties 379 Sec. 162c. Same — Action when terminated 379 Sec. 162d. Same— EfCect of dissolution 379 Sec. 162e. Same — Wlio may bring action ' 380 Sec. 162f . Same— Jurisdiction to dissolve 382 Sec. 162g. Same— Grounds for dissolution— Abuse and misuser of power 885 Sec. 162h. Same— Non-compliance 386 Sec. 1621. Same— Breach of trust 386 Sec. 162j. Same— Change of business 387 Sec. 162k. Same — Death of members 387 Sec. 1621. Same — Failure to elect officers 388 Sec. 16-2m. Same— Failure to do business or file return 389 Sec. 162n. Same— Failure to pay debts 389 Sec. 1620. Same — Insolvency— Meaning of 389 Sec. 162p. Same— Forfeiture of franchise 390 Sec. 162q. Same — State alone can ask 395 Sec. 162r. Same — How ascertained 397 Sec. 162s. Same — Suspension or abandonment of business 400 -Sec. 162t. Same— Suspension 401 Sec. 162u. Same — What amounts to a suspension 402 Sec. 162v. Same — Suspension of business for a year 402 Sec. 162w. Same — Failure to organize 403 Sec. 162x. Same — Accidental negligence or mistake 403 Sec. 62y. Same — Excusing forfeiture 404 Sec. ]62z. Same — Failure to perform duty 404 Sec. 162a^. Same — General assignment for benefit of creditors 404 Sec. 162bi. Same — Implied conditions— Failure to perform 404 .Sec. 162c^. Same — Misuser and nonuser 406 Sec. 162di. Same— Surrender of charter— Inferred when 408 Sec. 163ei. Same— Waiver of forfeittue 408 Sec. 162fi.^ame — Proceedings to declare forfeited 410 Sec. 162gi. Same— Suit by Attorney - General — Discretion of court 411 Sec. 162hi. Same — Wlien suit to be brought 412 Sec. 16211. Same— Where to be brought 412 Sec. 162j'. Same — How forfeiture declared 413 Sec. lH2ki. Same^When dissolution takes place 41.3 Sec. ] 62P. Same — Judgment of forfeiture necessary 414 Sec. 163. Same — By whom to be brought 416 Sec. 163a. Same— Who may apply 416 TABLE OP CONTENTS. XXyU PAGE. Sec. 163b. Same— Creditor at large 417 Sec. 163c. Same — Leave to sue , 417 Sec. 163d. Same — Parties to action — Lessee 418 Sec. 163e. Same — Pleadings 418 Sec. 164. Same — Temporary injunction 418 Sec. 164a. Injunction — Wlio may grant 419 Sec. 164b. Same — When granted 419 Sec. 164c. Same — Eeceiver — Appointment by special term 421 Sec. 164d. Same — Powers 421 Sec. 165. Same — Permanent and temporary receiver — Power, etc., of temporary receiver 422 Sec. 165a. Receiver — Character of ofBce 423 Sec. 165b.' Same — Effect of appointment 424 Sec. 165c. Same — Business — How transacted 424 Sec. 165d. Same — When appointed 425 Sec. 165e. Same — Duty of officers to oppose appointment 425 Sbc. 166f . Same — Who may have apppointed 426 Sec. 165g. Same — Where motion for made 426 Sec. 165h. Same — Order appointing — Depository of funds 427 Sec. 165i. Same — Setting aside appointment 427 Sec. 165j. Same — Removal, etc. , of receiver 428 Sec. 165k. Same — Protection of the receiver 428 Sec. 1651. Same — ^Duties and powers of receiver 429 Sec. 165m. Same — Unpaid subscriptions — Collection of 431 Sec. 153n. Same — Dividends wrongfully paid — Action to recover.. 432 Sec. 165o. Same— Examination of debtor 432 Sec. 165p. Same — Sale of property 433 Sec. 165q. Same — Compensation 433 Sec. 166. Same — Additional powers and duties may be conferred upon temporary receiver 434 Sec. 167. Same — Powers and duties of permanent receivers 435 Sec. 167a. Same — Title and possession of 436 Sec. 168. Same — Making stockholders, etc. , parties 436 Sec. 168a. Same— Bringing in stockholders — Voluntary appear- ance—Effect of ■. 436 Sec. 169. Same — When separate action may be brought against stock- holders, etc 437 Sec. 170. Same — Proceedings in action — Ascertaining defendant's liar bility 438 Sec. 171. Same — Judgment — Distribution of corporate property. .,o 438 Sec. 171a. Decree of sequestration — Effect of 438 Sec. 171b. Same— Payment of debts 438 Sec. 171c. Same— References 439 Sec. 171d. Same— Interest 439 Sec. 171e. Same — Employees' salaries — Attorney and counsel fees 440 Sec. 171f . Same — Officers salaries 440 Sec. 172. Same — Subscriptions to stock — Recovery of 441 Sec. 172a. Same — Liability of stockholders 441 Sec. 172b. Same — Who are stockholders 442 XXVIU TABLE or CONTENTS. PAGE- Sec. 173. Same — Liabilities of directors and stockliolders 442 Sec. 173a. Same— Failure to pay debts— Liability of stockholders.. 442 Sec. 174. Same — Limiting effect of article 443 Sec. 174a. Same— Charter liabilities 443 Sec. 175. Same— Proceeding by the people— Action by Attorney- General— Direction by legislature 443 Sec . 175a. Action to forfeit charter — by whom brought 444 Sec. 176. Same — Leave of court to sue — Grounds for annulling charter 445 Sec. 176a. Application for leave to sue 445 Sec. 176b. Same — Question passed upon by coiu-t 446 Sec. 176c. Same — Leave granted ex parte 446 Sec. 176d. Same — Notice of application 446 Sec. 176e. Same — Leave not properly granted— Effect 447 Sec. 176f . Same — Review and reversal 447 Sec. 176g. Same — Parties 447 Sec. 176h. Same — Grounds of action — Non-compliance 448' Sec. 176i. Same — Surrender of corporate rights 448- Sec. 176j. Same— Attachment against directors 449 Sec. 177. Same— Leave to sue — When and how granted 449 Sec. 178. Same — Action triable by jury 449 Sec. 178a. Same — Discontinuance 449 Sec. 179. Same — Form of judgment 449 Sec. 180. Same — Injunction may be granted 450 Sec. 181. Same — Judgment roll — Copy to be filed and published 450' Sec. 182. Same — The corporations excepted from certain articles of this title 451 Sec. 182a. Same — Compelling trustees to execute trust 451 Sec. 182b. Same — Religious corporation— Removal of trustees 451 Sec. 182c. Same — Trustees of benevolent societies — Contract for legislative appropriation 451 Sec. 182d. Same— Educational corporations— Sciences and arts. . . 452 Sec. 183. Same — Evidence — Officers and agents may be compelled to testify 452 Sec. 184. Same— Actions by creditors — Injunction staying 452 Sec. 184a. Same — Injunction staying suit 453 Sec. 184b. Same— Restraining action to obtain preference 453 Sec. 184c. Same — Against stockholder 454 Sec. 185. Same — Creditors may be brought In 454 Sec. 18oa. Same — Bringing in creditors 454 Sec. 18ob. Same — Failure to come in 455 Sec. 185c. Same — Misleading statements of receiver 455 Sec. 186. Same — When Attorney-General must bring action 456 Sec. 187. Same — Injunction against corporations in certain cases — Requisites of 46g Sec. 187a. Same — Suspension of business by injunction 457 Sec. 187b. Same — Notice of application — Illegal business 458 Sec. 187c. Same — Restraining removal of treasurer 459. Sec. 188. Same— Receiver — Order appointing in certain cases 459 ( Sec. 188a. Same — Vacating order 460 TABLE OF CONTENTS. XXIX" PAGB. Sec. 189. Same — OiEoer — Judicial suspension or removal of 460 Sec. 190. Same — ^Application of the last three sections 460 Sec. 191. Same — ^Action against stockholders — Misnomer, etc., not available 461 CHAPTER XI. ACTIONS BY AND AGAINST COKPOKATIONS. Sec. 192. Complaint in actions by or against corporations 463 Sec. 192a. Same — By whom to be brought 463 Sec. 192b. Same — When officer may maintain 464 Sec. 192c. Same — Suit by stockholder 465 Sec. 192d. Same — Corporation necessary party 467 Sec. 192e. Same — Action against of&cers 46T Sec. 192f. Same — Action by corporation — Complaint — Allegation of incorporation 471 Sec. 192g. Same — Verification of pleadings 472 Sec. 192h. Same — Service of process 473 Sec. 192i. Same — Contract in fraud of shareholders' rights — Action to set aside 474 Sec. 192j. Same — Division of corporate funds — Action by minor- ity 474: Sec. 192k. Same — Contracts in restraints of trade — Action by assignee of corporation 475 Sec. 1921. Same — Action for torts committed after expiration of charter 475 Sec. 192m. Same — Alleging corporate existence 480 Sec. 192n. Same — Voluntary appearance 481 Sec. 192o. Same — Name in which suit to be brought 482 Sec. 192p. Same — Fraudulent representation of directors — Action for — Form of complaint 482 Sec. 192q. Same — Contracts ultra vires 483 Sec. 192r. Same — Motion to stay suit — ^Where brought 484 Sec. 192s. Criminal Proceedings — Indictment — Appearance 484 Sec. 192t. Same — Proof of incorporation 484 Sec. 193. Same — When proof of corporate existence unnecessary 486. Sec. 193a. Same — Evidence of incorporation 48ft Sec. 194. Same — Misnomer — When waived 48T Sec. 195. Same — Action against a corporation upon a note, etc 48T Sec. 195a. Same — Damages for non-payment of promissory note, etc 488! Sec. 196. Same— When foreign corporation may sue 489 Sec. 196a. Same — Right to sue — Security for costs 489 Sec. 197. Same — When foreign corporation may be sued 490 Sec. 197a. Same — Foreign Corporation — Suit against — Voltmtary appearance 491 ;x TABLE OF CONTENTS. PAGE. Sec. 197b. Same — Suit by non-resident 492 Sec. 197c. Same — Service of summons 493 Sec. 197(1. Same — Service of summons by publication 494 Sec. 197e. Same — Service on officer outside of state of domicil 494 •Sec. 197f. Same — Service of process in United States Courts 496 CHAPTER XII. JUDICIAL SUPEBVISIOlf AUT> CONTROL. ■6bc. 198. Directors and officers of corporation— Misconduct of — Action for 498 Sec. 198a. Same — Power of equity over , 499 . Sec. 198b. Same —Complaint — Demand 501 . Sec. 198c. Same — Restraint of trustees 501 Sec. 198d. Same— Responsibility of officers '502 Sec. 198e. Same — Suspension of corporation 502 Sec. 198f. Same — Visitorial powers. , 503 "Sec. 199. Same — By wbom action to be brought 503 Sec. 199a. Same — Action for fraudulent mismanagement 503 Sec. 199b. Same — Parties to — The corporation is a necessary party — Action affecting its mismanagement 504 Sec. 199c. Same— Stockholder's action 504 Sec. 199d. Same — Action of creditor — Meaning of term 505 Sec. 199e. Same — Action by attorney-general 506 Sec. 200. Fraudulent management of and fraudulent insolvencies by corporations — Frauds in subscriptions for stock of cor- poration 507 Sec. 201. Frauds in the issue of stock, script, etc 507 Sec. 202. Fraudulent sale of shares— Liability of officer, agent, etc 508 Sec. 203. Frauds in organization of corporation or increase of capi- tal 509 Sec. 204. Fraudulent use of names in prospectuses, etc 509 Sec. 205. Same— Falsely indicating person as corporate officer 509 Sec. 206. Frauds and misconduct of directors 510 Sec. 207. Fraud in keeping accounts, etc 511 Sec. 208. Officer of corporation publishing false reports of its con- dition 511 Sec. 20Sa. Fraudulent reports concerning value of stock 512 Sec. 208b#Frauds by directors — Remedy 512 Sec. 209. Fraudulent insolvencies — What are 512 Sec. 210. Affairs of corporations— Knowledge of directors— Presump- tions as to 513 Sec. 211. Presence of directors at meeting— Presumed assent to pro- ceedings 513 .Sec. 212. Absence of director from meeting— Assent to proceedings— When presumed 513 TABLE OF CONTENTS. XXXI PAGE. Sec. 213. Notice of application for injunction — Service upon directors — Failure to disclose 514 Sec. 214. Foreign corporations 514 Sec. 215. Term "director" defined 514 CHAPTER XIII. PKOCEEDINGS FOR THE COIfDEMlfATION OF KEAL PROPERTY. Sec. 216. Title of act— When act takes effect 51& Sec. 217. Terms defined 517 Sec. 217a. Incorporeal hereditaments — Condemnation of 517 Sec. 218. When proceedings to be taken 517 Sec. 218a. Taking private property for public use— Condemnation of corporate property 517 Sec. 218b. Same — Construction of statute 518 Sec. 219. Proceedings to be commenced by petition — What to contain . . 518 Sec. 219a. Jurisdiction to condemn — When right exercised — Petition 520 Sec. 220. Notice to be annexed to petition — Upon whom served 521 Sec. 221. Petition and notice — How served 521 Sec. 222. Appearance of defendant infant, idiot, lunatic or habitual drunkard 522 Sec. 223. Appearance of parties 522 Sec. 223a. Same — Verification of pleadings — Appearance by at- torney—Effect of ;■ 523 Sec. 224. Answer— What to contain 523 Sec. 224a. Same — ^Non-performance of conditions in charter 523 Sec. 225. Petition and answer — Verification 524 Sec. 226. Trial of issues 524 Sec. 227. Provisions made applicable 524 Sec. 228. Judgment— What to contain — Costs— When to defendant — Commissioners 525 Sec. 228a. Same — Assent — Commissioners to assess damages — evidence, etc 526 Sec. 229. Commissioners — Oath of office — Proceedings — Compen- sation 526 Sec. 229a. Same— Power of commissioners— Eule for estimating damages 527 Sec. 230. Report-r-Confirming and setting aside — Deposit when pay- ment 530' Sec. 230a. Same — Title — Setting aside award on technical grounds — Arbitrary exercise of power — Stultifying report — When court will not interfere 531 Sec. 231. Offer to compromise — Amount of costs — Additional allow- ance 533 XXXil TABLE OP CONTENTS. PAGE. Sec. 232. Judgment— How enforced— Delivery of possession of prem- ises — Writ of assistance 5^"* Sec. 233. Abandonment of proceedings 535 Sec. 233a. Same— When proceedings may be abandoned— Con- firmation of report « 536 Sec. 234. Appeal from final order— Stay 536 Sec. 234a. Same— Objection to incorporation— Right to appeal. . . 537 Sec. 234b. Same— Waiving right to appeal— Review 537 Sec. 235. Appeal from judgment by plaintiff , • • • • 538 Sec. 236. New appraisal — When granted 538 Sec. 236a. Same— Second report— Confirmation— Review 539 Sec. 237. Conflicting claimants 539 Sec. 237a. Same— Award to unknown owners— Tax title— Consti- tutional law .' 539 Sec. 238. Possession of property — Giving security 540 Sec. 239. Possession — When to be given immediately 640 Sec. 240. Pendency of action— Notice of to be filed. 541 Sec. 241. Practice in cases not provided for 542 Sec. 242. Repealing clauses 542 CHAPTER XIV. PEOCBEDINGS FOB THE SALE OP CORPOBATB EBAL PBOPEBTy. Sec. 243. When proceedings to be taken 544 Sec. 244. Proceedings to be instituted by petition — Contents of pe- tition 644 Sec. 245. Hearing of application — Notice — Appointment of referee. . . 546 Sec. 246. Order — Application for — When may be opposed 546 Sec. 246a. — Same— Provisional order — Jurisdiction of court 547 Sec. 247. Insolvent corporation or association — Notice to creditors. . . 547 Sec. 248. Service of notice — How made 548 Sec. 249. Practice in cases not provided for 548 CHAPTER XV. WEEKLY PAYMENT OP WAGES. Sec. 250. Wages — Weekly payment of 549 Sec. 251. Same — Penalty for violation — Defences 550 Sec. 252. Same — Proceedings to enforce penalty 551 Sec. 253. Same — Constitutionality. , 551 PABT n. MANUFACTURING CORPORATIONS. CHAPTER XYI. MASrUPACTUKING CORPOKATIONS — ^PBELIMINABT. PAGB. Sec. 254. Manufacturing corporations — Acts governing 555 Sec. 255. Same — Incorporation of companies 556 Sec. 256. Same — To be bodies corporate and politic 557 Sec. 257. Same — Trustees to be annually elected— Vacancy in the office of trustees, how filled — Number not to exceed nine 557 Sec. 258. Same — Company not dissolved by neglect to elect 558 Sec. 259. Same— Capital stock — Shares forfeited for non-payment 558 Sec. 260. Same — Powers of trustees 559 Sec. 261. Same — Stock deemed personal estate — How transferable — Stockholders responsible— Restriction on the funds.. 559 Sec. 262. Same — ^Evidence of incorporation 560 Sec. 263. Same-.-Manufaotures of clay and earth 560 Sec. 264. Same — Making by-laws — Appointing firemen 561 Sec. 265. Same — Certain articles to be exempt from distress and sale. . 562 Sec. 266. Same — Pin manufactories and others may be established 562 Sec. 267. Same — Manufactories of Morocco and other leather 563 Sec. 268. Same — Power to give mortgages — ^Doubts having existed. . . 563 Sec. 269. Same — Act continued in force 564 Sec. 270. Same — Act revived 564 Sec. 271. Same — Act amended. 565 CHAPTER XVn. MANTTFACTUBING CORPOKATIONS — ^FOEMATIOIf. Sec. 272. Title of act 566 Sec. 273. Amendments and extension of act — Construction. 567 Sec. 274. Scope of act • • 568 Sec. 274a. Same — For what business companies may be organized. 563 Sec. 275. Same — Corporations — How formed 573 Sec. 275a. Same — Rights and powers of companies 576 Sec. 276. Number of corporators — Purposes 579 Sec. 277. When to become bodies corporate 581 Sec, 278. Extension of existence 582 3 XXXIV TABLE OF CONTENTS. CHAPTER XYIII. mairnpacttreing corporations — for what purposes formed. page; Sec. 279. What businesses may be organized under — Agricultural Com- panies ■ 584 Sec. 280. Same— Agricultural, horticultural, taedical, and curative associations — AVhat certificate shall state 585 Sec. 281. Same — May hold stock in certain companies , 586 Sec. 282. Same— Officer in two companies 586' Sec. 283. Same — Coal and peat companies 58T Sec. 284. Same— Cultivating grapes and making wine 587 Sbc. 285. Same — Dredging, dock building, etc., companies 588- Sec. 286. Same— Elevators, warehouses, docks, skating rinks, fair grounds, etc 58S Sec. 2s7. Same— Fish companies— Manufacture of fertilizers 590 Sec. 288. Same — Ice companies 591 Sec. 289. Same — Made subject to other laws 591 Sec. 290. Same— Machines and companies for raising vessels 591 Sec. 291. Same- Not limited to county 592: Sec. 292. Same — Mineral water companies 592 Sec. 293. Same— Navigation and salvage companies 59:J Sec. 294. Same — Limits of such corporations 59S Sec. 295. Same— News — Collecting and vending 593. Sec. 296. Same — Book and newspaper companies 594 Sec. 297. Same— Oil companies 594 Sec. 298. Same — Railroad and rolling stock companies 595' Sec. 299. Same — May lay down and maintain railroad track 596 Sec. 300. Same — Union railway depots 596' Sec. 301. Same - Stock — Who may maintain 597 Sec. 302. Same— Rules, etc 597 Sec. 303. Same — Real estate companies — Tenement houses, home- steads, and public halls 598- Sec. 303a. Same — Additional real estate, to what extent and how may be acquired 599 Seo. 304. Same — Salt companies — When to pay in stock 69& Sec. 305. Same — Steam-heating companies — How to be known 599 Sec. 306. Same — Must furnish steam when required— Penalty for neglect or refusal , 600 Sec. 307. Same — Powerof municipalities 605 Sec. 308. Sam^Laying pipes in streets for heating, etc 601 Sec. 309. Same — Agent authorized to enter buildings and examine meter — penalty for interfering with agent ■- . 602 Sec. 310. Same — Agent may enter and cut off — Under what con- tingencies — Misdemeanor to open valves, etc 60S Sec. 311. Same — Corporations for towing or propelling vessels 601 Sec. 312. Same — Water companies — Organization of 605 Sec. 313. Same — Liability of company and stockholders 60& Sec. 314. Same — May be conducted by mining companies 60S TABLE OF COXTE>sTS. rxXV PAGE. Sec. 315. Same — Must file certificate of such intention 606 Sec. 316. Same — May acquire title to land in same manner as railroad companies 607 Sec. 317. Same — May make contracts to furnish water 60S Sec. 318. Same — Corporations may be organized for boring, etc., for water 608 Sec. 319. Same — Rights, privileges, etc., of such corporations 608 Sec. 320. Same — Have power to lay pipes, etc., through streets — Con- sent of public authorities 608 Sec. 821. Same — May contract with cities, etc., to furnish water — In I*rew York city, bonds to be issued and money raised. . . 609 Sec. 822. Same— Water for mining 610 Sec. 328. Same— Corporations subject to certain provisions Olft Sec. 324. Same — Former incorporations may proceed hereunder 610 CHAPTER XIX. MANTJFACTUEING COBPOBATIONS — PEBPECTINe OESAITIZATION, ETC. Sec. 325. Certificate of incorporation — To be filed and recorded. 612 Sec. 326. Same — Fee for filing and recording 612 Sec. 327. Same — Amended certificate — Filing of 613 Sec. 328. Places of business — Number 613 Sec. -329. Same — ^Principal place of business 613 Sec. 330. Same — Change of place of business — Filing amended certi- ficate 614 Sec. 331. Same — Certificate as to — Taxation at , 615 Sec. 331a. Same — Taxation at — Basis of taxation 616 Sec. 332. — Trustees— Election of 616 Sec. 332a. Same —Right to vote at election 617 Sec. 332b. Same — By-laws respecting elections 618 Sec. 332c. Same — Powers of supreme court respecting elections. . . 618- Sec. 332d. Same — Oath of inspectors of election 619^ Sec. 332e. Same— When to beheld 619 Sec. 332f. Same — Setting aside election 620 Sec. 332g. Same— Character and powers of trustees 620 Sec. 333. Same — Number of trustees 621 Sec. 333a. Same — The board — Quorum 621 Sec. 334. Same — Number of — How increased or reduced 622 Sec. 334a. Same — Determining number 62.3 Sec. 335. Same— Eligibility 62S Sec. 336. Same — Power to purchase— Issuing stock for 624 Sec. 336a. Same— Charging stockholder by 624 Sec. 387. Same— Failure to elect— Holding over 625 Sec. 338. Same— Officers— Designation and appointment of 625 Sec. 338a. Same— Liability and authority of 626 Sec. .339. Trustees to make calls on stockholders 62T Sec. 339a. Same— Enforcing payment 627 :XXXvi TABLE OF OONTEISTS. PAGE. Sec. 339b. Same— Forfeiting stock 628 Sec. 340. Trustees to make by-laws 628 Sec. 340a. Same — Force and effect of by-laws 628 Sec. 341. Stock— Transfer of " 629 Sec. 341a. Same — Issue— Transfer, etc 680 Sec. 342. Same — Power to hold stock in other company 632 Sec. 343. Certificate of incorporation — Copy of to be evidence 632 Sec. .343a. Same— Evidence of legal residence— Conclusiveness . . . . 633 Sec. 343b. Same — Extrinsic evidence 634 Sec. 344. Liability of stockliolders 634 Sec. 344a. Same— Grounds of Liability, etc 635 "Sec. 345. Same — Exception as to salt companies 638 :Sec. 346. Same — Certificate of payment — Filing of 638 Sec. 346a. Same — Certificate to be sworn to • 638 CHAPTER XX. MANUFACTUBING COliPOKATIONS — FILING AJSTNCAI. KEPOBT. Sec. 347. Annual report — Failure to make — Individual Liability of trustees 640 Sec. 347a. Same — Filing report — Liability for failure to file 642 Sec. 347b. Same— Extent of trustees' liability, etc 512 Sec. 347c. Same— Suit by and against stockholder 645 Sec. 347d. Same— Suit for penalty — Within what time to be brought 645 Sec. 348. Dividends — Payment by insolvent corporation — Liability of trustees 646 Sec. 349. Stock to be paid in cash 647 Sec. 350. Same— Issuing stock for property 647 Sec. 351. False certificate or report — Liability of trustees 648 Sec. 351a. Same — False report — What is — Liability for. 648 Sec. 352. Holders of stock— Liability of executors, etc , 649 Sec. 353. Elections — Who may vote at — Executors, etc 649 Sec. 354. Laborers, servants, etc. — Liability of stockholders 650 Sec. 354a. Same — Who are laborers 650 Sec. 354b. Same — Suit by stockholder 651 Sec. 355. Alteration or repeal of act 651 'Sec. 356. Capital stock — Increase or diminution of 651 Sec. 357. Same— Number of shares may be increased 652 Sec. 358. Same — Increase, how made 653 Sec. 359. Same — Certificate to stockholder 653 Sec. 360. Same — Meeting of stockholders — Manner of calling. 653 "Sec. 361. Same— Organization and conduct of 654 .Sec. 362. Same — Indebtedness of companies — Not to exceed capital stock 655 Sec. 362a. Same — Liability of trustees 655 Sec. 363. Same—Action against trustees — Limitation 656 TABLE OP CONTENTS. XXXvii PAGE. Sec. 363a. Same — Proceedings 657 'Sec. 364. Stock books to be kept— Entries 657 Sec. 364a. Same — Care and custody — Inspection of 658 CHAPTER XXI. MANTJEACTTmiNG COKPOBATIONS— POWERS, ETC. Sec. 365. Same — General powers 661 Sec. 365a. Same — Succession, etc 661 &SC. 365b. Same — In what corporations to vest 662 Sec. 365c. Same— Other powers 662 Sec. 365d. Same — Exercise of banking powers 662 Sec. 365e. Same— Liability of stockholder 663 Sec. 365f. Same — Quorum 663 Sec. 365g. Same— Forfeiture for non-usure 663 Sec. 365h. Same— Right to repeal 663 Sec. 365i. Same— Dissolution — Trustees in case of 664 Sec. 365j. Same — Powers of 664 Sec. 365k. Property of corporations 664 Sec. 366. Same— Benefits and privileges , 665 Sec. 367. Same— Mortgaging of real or personal estate to secure debts — Validity of mortgage — ^Assent of two-thirds of capital requisite 665 Sec. 368. Same — Mortgaging property and franchise 666 Sec. 369. Same — Mortgaging property out of state — Assent to mort- gage — How evinced 667 Sec. 370. Same — Filing covreut of stockholders nunc pro tunc 667 ■Sec. 371. Same — May purchase mines, manufactories, etc., and issue stock in payment 668 Sec. 371a. Same — Scope of act 669 Sec. 372. Same — Holding stock in other companies 670 Sec. 373. Statement of affairs of company — When to be made 671 "Sec. 374. Same — Statement at annual meeting of stockholders 674 PABT III. CORPORATION LAWS OF NEW JERSEY AND WEST VIRGINIA. CHAPTER XXII. NEW JBKSEY COEPOKATIONS — POWBBS. PAGE. Sbc. 375. Powers in general ^^^ Sec. 376. Same— Vesting of ^'^ Sec. 377. Same— Miist be expressly given S^fr Sec. 378. Banking powers — Not implied 676. Sbc. 379. Stockliolders— Liability to creditors 67T Sec. 380. Repeal of charter- Reservation of right 677 Sec. 381. Dividends — Made from sm-plus or profits— Personal liabil- ity of directors for debts 677" Sec. 382. Company specially chartered — Powers of 678 Sec. 883. Company organized under any general law— Powers of 678 CHAPTER XXIII. NEW JEE8EY CORPOBATIONS — FOKMATION, CONSTITUTION, ALTEB- ATION AND DISSOLUTION. Sec 384. Purposes for which corporations may be formed 680 Sec 385. The certificate of incorporation — Contents — Authentication Filing and recording 681 Sec 386. Same — Amended certificate — Piling 682 Sec 387. Same — ^Certificate and certified copy — Evidence 685 Sec 388. Corporate existence — Begins when certificate is filed 683 Sec 389. All companies governed by this act 683 Sec 390. Carrying on business out of state — Holding real estate out of state 683 Sec 391. Directors shall be shareholders — Officers — Secretary and treasuier 684 Sec 392. Directors — When to be chosen-— Selection of president 684 Sec 393. Secretary and treasurer — When chosen — Secretary to be sworn — Treasurer to give bond 685 Sec 394. Same—Other officers 685 Sec. 395. Vacancies — How filled 685 Sec. 396. Vote by proxy — Meetings — Quorum 685 Sec 397. Meetings — How called 685 TABLE OF COiN-TEJS'TS. XXxix PAGE. Seo. 398. Certificate of stock - • 686 Sec. 399. Increase of stock— Method of 686 Sec. 400. Common and preferred stock 686 Sec. 401. Transfer of shares— Hypothecation—Contents of certificate — What transfer must express 687 Skc. 402. Assessment of stock 687 Sec. 403. Same — Non-payment of —Penalty 687 Sec. 404. Same — Proceedings for sale of shares 688 Sec. 405. Payment of capital stock — Filing certificate of 688 Sec. 406. Increase of stock— Certificate of— To be filed 688 Sec. 407. Failure or refusal to make certificates— Penalty 688 Sec. 408. Reduction of stock — Change of nature of business 689 Sec. 409. Dissolution of corpora,tion — Proceedings for 689 Sec. 410. Alteration of act— Reservation by legislature 689 CHAPTER XXrV. SEW JERSEY COBPOBATIONS — ELECTION OP OFFICEBS. Sec. 411. Transfer and stock books — Open to inspection — List of stock- holders — Time of making 692 Sec. 412. Elections for directors — How had— Opening and closing of , polls 692 Sec. 418. Same — Votings — Proxies — Where stock cannot be voted. . . . 693 Sec. 414. Same — Executors, trustees, etc., holding stock may vote. . . 693 Sec. 415. Same — Non-resident stockholders may vote 693 Sec. 416. Same — Alphabetical list of stockholders 693 Sec. 417. Same — Judges of election — Candidate for of&ce of director cannot be 694 Sec. 418. Same —Company holding its own stock cannot vote on it 694 Sec. 419. Same — Complaints touching — Supreme court will summarily Investigate 694 Sec. 420. By-laws regulating election — When to be made — Transfer books determine who may vote 695 Sec. 421. Failure to hold election— Notice of new election 695 Sec. 422. Same — Secretary to call meeting on application of stock- holders 696 Sec. 423., Director — Must be a stockholder. 696 Sec. 424. Same — Ceasing to be stockholder, ceases to be director 696 Sec. 425.. List of oflScers and directors — Filing with secretary of state.. 696 CHAPTER XXV. NEW JERSEY COBPOBATIONS— MANAGEMENT AND LIABILITIES OP DIBKCTOES. Sec. 426. Stockholders meeting — Election to be held at principal office in state 69$ xl TABLE OE CO:STElsTS. PAGE, Sec. 427. Same— OfiSoers neglecting or refusing to call— Stockiolders may call 699 Sec. 428. Dividends— Manufacturing corporations to declare annually. 699 Sec. 429. Withdrawal of capital— Directors and stockholders liable . . . . 700 Sec. 430. Capital— Payment of to be in money— No loans to stock- holders 700 Sec. 4.31. Stock — Issue of for property purchased'. 700 Sec. 432. False certificate — Liability of officers for debts 701 CHAPTER XXVI. NEW JERSEY COKPOBATIONS— BEMEDIES. Sec. 433. Against the corporation — Directors to be trustees on dis- solution 70$ Sec. 434. Same — Powers and liabilities of trustees 704 Sec. 435. Same — Continuance of corporate existence for setting up business 704 Sec. 436. Same — Dissolution — Directors may be continued as trustees — Eeceiver may be appointed when 704 Sec. 437. Same— Chancellor has full jurisdiction 705 Sec. 438. Same— Duties of receivers 705 Sec. 439. Same — Lien of workmen in case of insolvency 705 Sec. 440. Same — On dissolution property vests in stockholders 706 Sec. 441. Same — Dissolution — Suits do not abate on 706 Sec. 442. Same — Execution against corporation— Schedule of property to be shown sheriff 706- Sec. 443. Same — Execution — Satisfactionoutof debts due the company 706- Sec. 444. Same— Failure or refusal to comply with above sections — Penalty 707 Sec. 445. Same — Insolvency of company — Directors to call a meeting of stockholders 707 Sec. 446. Same — Insolvency bill in chancery for injunction and receiver. 707 Sec. 447. Same — Inoslvency — Evidence of 708 Sec. 448. Same — Receivers— Court of chancery may appoint — Powers - of 709 Sec. 449. Same — Receivers — Qualifications of — Form of oath 709 Sec. 450. Same — Receiver — Examination of — Witnesses respecting ef- f%:ts of the company 710 Sec. 451. Same —Receiver may break doors and make search 710 Sec. 452. Same— Receiver to file inventory and accounts 710' Sec. 453. Same— Receiver — Power to sue, compound debts, allow set- offs, etc 711 Sec. 454. Same— Suit by receiver — Disputed claim — Trial by jury 712' Sec. 455. Same — Majority of receivers may act — Removal of receivers.. 712^ Sec. 456. Same — Distribution of assets of insolvent corporation 712 Sec, 457. Same — Receiver may be substituted in pending suit. ....,.., 715 TABLE OP CONTENTS. xIl PAGE. Sec. 458. Same — Eeceiver's determination — Appeal to the chancellor from 713 Sec. 459. Same — Appointment of receiver — Corporation not to transact business after — Forfeiture of charter 714 Sbo. 460. Same— Mortgaged property — Sale free of liens 714 Sec. 461. Same— Franchise of railroad, canal, etc., may be sold 715 Sec. 462. Same — Limitation of act 715 Skc. 463. Same — Process against a corporation — Method of service 715 Sec. 464. Same— Service of process on foreign corporations il6 Sec. 465. Same — When defendant in court 716 Sec. 466. Same — Service by publication when 716 Sec. 467. Same— Commencement of action — Lien on company's lands. 717 Sec. 468. Same — Dissolution of corporation does not abate suits 717 Sec. 469. Against directors and stockholders — Liabilities of officers and directors enforced by action on the case 718 Sec. 470. Same— Enforcement by bill in chancery 718 Sec. 471. Same — Payment of debt by officers and stockholders — Ee- cover of company 718 Sec. 472. Same— Property of director or stockholder — ^When to be sold for company's debt 718- CHAPTER XXVn. NEW JERSEY COBPOEATIONS — MISCELLANBOTJS AND SUPPLBMENTAET PKO VISIONS. Sec. 473. Application for special charters and for renewals — liTotice of. 721 Sec. 474. Manufacturing act of 1846 — Companies formed under may come under this act 722 Sec. 475. Foreign corporations — Power to hold and mortgage lands in this state 723 Sec. 375a. Foreign corporations may hold land 723 Sec. 375b. Same — Foreign benevolent corporations may hold land. 723 Sec. 476. Franchise— Contracts for transfer or merging of must be re- corded 724 Sec. 477. Manufacturing company act of 1848 — Repealed 725 Sec. 478. Manufacturing company act of 1849 — Repealed 725 Sec. 479. Foreign corporations — Subject to act 725 Sec. 480. General repealer 725 Sec. 481. Taxation of property of corporations — Proviso 725 Sec. 481a. Same — Property of manufacturing corporation — How taxed 72& Sec. 481b. Same— Tax on franchise 726 Sec. 481e. Same — Amount of franchise tax to be paid by certain corporations 72& xlii TABLE OF CONTENTS. PAGE. Sec. 481d. Same— Annual reports by certain companies to state board of assessors "^^8 Sec. 481e. Same— Penalties for false statement, or neglect to make statement "29 Sec. 481f. Same— Proceedings of state board of assessors 729 Sec. 481g. Same— The tax is a debt for *hlcli an action may be brought "^30 Sec. 481h. Same— Injunction against company neglecting to pay tax 730 Seo, 482. Dividends— Time of declaring— Change of 730 Sec. 483. Corporate existence— Extension of '31 Sec. 483a. Same Extension after term in charter has expired... . 731 Sec. 483b. Same— On filing certificate existence is extended... 732 Sec. 483c. Same— Extension not to impair the rights of the state. 732 Sec. 483d. Same— Extension of corporate existence does not ex- tend special exemptions from taxation 732 Sec. 484. Same— How the corporate existence extended 733 Sec. 485. Same— Charters not irrepealable 733 Sec. 486. Directors of water or manufacturing companies— Residence of — Majority must reside within state. ... 733 Sec. .487. Shares— Change of par value of 734 Sec. 488. Increase of number of by subdividing 734 Sec. 489. Capital stock— Increase by paying bonds 735 Sec. 489a. Same— Any company except railroad and canal companies may increase oapitsil stock 736 Sec. 490. Corporation in hands of receiver— May mortgage prop- erty when 737 Sec. 490a. Same— "What may come under this act 737 Sec. 491. Co-operative companies- Formation of — Capital 737 Sec. 492. Principal ofQce— Removal of 738 Sbo. 493. Insolvent company — Forfeiture of charter 738 Sec. 494. Same— May issue bonds 739 Sbo. 495. Certificate of stock — Lost — ^New certificate issued 740 Sec. 496. Same — Discharge of corporation from liability for issuing new certificates 740 Sec. 497. Same — Proceedings to compel issuance of new certifi- cate — Order to show cause 742 Sec. 498. Same— Proceedings on return of order 743 Seo. 499. Mining company — Assessment of stock — May be made • by directors when 744 Sec. 500. Stock issued for property purchased — Guaranteed divi- dends 744 Sec. 501. Incorporation of company — Where incorporator is dead another may be appointed 745 Sec. 502. Mutual associations — Creation of capital stock by 746 Sec. 503. Eights of corporations holding stock of other corpora- tions 746 a?ABLE OF CONTENTS. xliii CHAPTER XXVIII. ■WEST VIEMNIA OOEPOKATIONS — OF COBPOKATIONS GENBBALLT. PAGE, Seo. 504. General powers of corporations 748 Sbo. 505. Same — Restrictions on 749 Sbc. 506. Same— Cannot purchase real estate to resell 749 Sec. 507. Same — Certain corporations may lay out towns 749 Sec. 508. When corporations may enter upon lands 750 Sec. 509. Same — How much land corporations may acquire 751 Sec. 510. Condemnation of land — Proceedings to take without the owner's consent 751 Sec. 511. Same — Notice of application for such appointment 751 Sec. 512. Same — Company to provide wagon ways 752 Sec. 513. Company not to occupy streets in a town without its assent 752 Sec. 514. Dissolution of corporation — Disposition of its property 752 Sec. 515. Actions and process against a corporation 752 Sec. 516. Same — Service of attachments 752 Sec. 517. Same — Process may be served on depot or station agent .... 752 Sec. 518. Additional powers of corporations 753 Sec. 519. Usurious contracts of a corporation 753 Sec. 520. Existing corporations retain their privileges and Uabilities. . 753 CHAPTER XXIX. WEST VIBGINIA COBPOKATIONS — OF JOESTT STOCK COMPANIES. Sec. 521. Definition 755 Sec. 522. Joint stock companies— Not to be incorporated under special charter 756 Sec. 523. Former charter — To be deemed extinct when 757 Sec. 524. Organization of company — Within what time must be ef- fected 757 Sec. 525. Dissolution of corporation by suspension of business 757 Sec. 526. Right of legislature to alter or repeal charters 757 Sec. 527. What companies are subject to this chapter 758 Sec. 528. Corporate name 758 Sec. 529. Same— Change of corporate name 758 Sec. 530. Effect of change of name 759 Sec. 531. The capital stock 759 Sbc. 532. Same— Preferred stock 759 Sbc. 533. Number of stockholders 759 Sec. 534. Stock owned by the corporation 760 Sec. 535. Who deemed the owner of stock 760 Sbc. 536. Stock deemed personal estate 760 Sec. 537. Transfer book 760 Sbc. 538. Transfer of stock 760 Sec. 539. Subscription to the capital stock 760 xliv TABLE OF CONTENTS. PAGE, Sec. 540. Sale of stock — To be sold at less than par to increase capital stock 760 Sec. 341. How subscriptions to be paid • , 761 Sec. 542. When stock to be regarded as taken 761 Sec. 543. Apportionment of stock , 761 Sec. 544. Failure to pay subscriptions « 761 Sec. 543. When company may sell delinquent stock 762^ Sec. 546. When corporation may recover from delinquent stockholder 762 Sec. 547. Security for unpaid instalments of stock 762 Sec. 348. Insufficient or doubtful security 763 Sec. 549. Failure to give satisfactory security 763 Sec. 530. Failure to pay instalments 763 Sec. 551. Certificates of stock 764 ' Sec. 552. Same — To be surrendered on transfer of stock 764 Sec. 553. Same — Sale, etc., of stock with delivery of to purchaser 764 Sec. 554. Same — Lost certificate 764 Sec. 555. Dividends of stock 765 Sec. 356. Dividend declared out of the capital 765 Sec. 557. Meeting of the stockholders 765 Sec. 558. Same— Quorum 76& Sec. 559. Same — Lists of stockholders — To be hung up in principal office 766 Sec. 560. Same— Mode of voting 766 Sec. 561. Same — Voting proxies 767 Sec. 562. Annual report of directors 767 Sec. 563. Books, papers, etc 767 Sec. 364. Board of directors 768 Sec. 563. Same— President 768 Sec. 366. Same— Meeting of the board 768 Sec. 567. Same — Eecord of proceedings 769 Sec. 568. Officers and agents 769 Sec. 569. Books of account 769 Sec. 570. By-laws 769 Sec. 571. Dissolution — Voluntary dissolution 769 Sec. 572. Same — Proceedings in equity to dissolve a corporation 770' Sec. 573. Receiver 771 Sec. 574. Effect of dissolution or expiration of a corporation 771 Sec. 575. Examination of report required by the legislature 772 Sec. 575a. Service of process or notice 772 Sec. 576. Quantity of land which a corporation may hold 772 Sec. 577. PresOTvation of the peace, etc 773' CHAPTER XXX. WEST TIKGrcnA CORPOEATIOIir — INCORPORATION OP JOINT STOCK COMPANIES "WITHOUT SPECIAL CHARTED. Sec 578. To what charters such companies shall be subject 775 Sec. 579. The purposes for which they may be formed 776 Sec. 580. Formation of corporations for certain purposes prohibited. . 778. TABLE OF CONTENTS. xIaT PAGE. Sec. 581. Capital stock 776 Sbc. 582. Same— Limitation of 776 Sec. 583. Mode of incorporation and duration 776 Sec. 584. Ten per cent, of stock must be paid in 777 Sec. 585. Agreement must be acknowledged 777 Sec. 586. Certificate of secretary of state 777 Sec. 587. Effect of certificate of incorporation 778' Sec. 588. Duration of corporation 779' Sec. 589. Existing corporations may accept this cliapter 780 Sec. 590. Stock— Par value of— Change of 780 Sec. 591. Directors — Term of office of the first 781 Sec. 592. First meeting of stockholders 781 Sec. 593. Sale of additional stock before organization 781 Sec. 594. Certificate of incorporation — Eecording, publication and ofi&cial copies 782' Sec. 595. Same — Secretary's fefes 782: Sec. 596. Same — Certified copy of — Equivalent as evidence to the original 782 Sec. 597. Same — Recorded in county clerk's office 783 Sec. 598. Increase or reduction of the number of shares or the par value of the stock 78,5 Sec. 599. Same — To be certified to the secretary of state 783 Sec. 600. Meetings and principal office 783 Sec. 601. Power of attorney to accept service of process 784 Sec. 602. Taxation of cormjrations 785 Sec. 603. Sale of property and works of corporations other than railroad companies 786 Sec. 604. Stockholders — Liability for debts of company 786 CHAPTER XXXI. WEST VIBGnSIA COBPOBATIONS— HOMESTEAD AND BtnLDrNG ASSOCIATIONS. Sec. 605. For what purposes formed 787 Sec 606. Limitation as to use of funds 787 Sec. 607. Kights, powers and privileges 787 Sec. 608. Liability of stockholders 788 Sec. 609. By-laws and articles of government 789( CHAPTER XXXU. THE GENEEAL COEPOBATION I1A.W, Sec. 610. Short title 792 Sbc. 611. Definitions 792 Sec. 612. Piling and recording certificates of incorporation 793 Sec. 613. Corporations of the same name prohibited 793 Sec. 614. Amended certificates 794 Sbo. 615. When copy certificate may be filed 794= Ixvi TABLE OF CONTENTS. PAGE. Sec. 616. Certificate and other papers to be evidence 794 Sbc. 617. General powers 794 "Sec. 618. Incidental powers 795 ^Sec. 619. When additional lands may be acquired 795 Sec. 620. May hold property in other states 795 Sec. 621. "When foreign corporation may hold real estate 796 : Sec. 622. May purchase at mortgage foreclosure 796 '.Sec. 623. Banking powers prohibited 796 Sec. 624. Powers of supreme court respecting election 796 Sec. 625. Stockholder or member may stay proceedings in action coUusively brought 796 Seo. 626. Majority to act 797 Sec. 627. Corporation not dissolved for failure to elect directors . . 797 ;Sec. 628. Directors to be trustees in case of dissolution 797 , Sec. 629. Their powers as such trustees 797 - Sec. 630. Forfeiture for non-user 798 ; Sec. 631. Extension of corporate existence 798 Sec. 632. Laws repealed 798 Sec. 633. Saving clause 799 Sec. 634. Construction 799 Seo. 635. When to take effect 799 CHAPTEK XXXIII. THE BUSESTESS CORPOEATIOl* LAW. Sec. 636. Short title of chapter 802 Sec. 637. Incorporation 803 Sec. 638. Eestriction upon commencement of business 803 Sec. 639. Adoption of by-laws 804 Sec. 640. Eeorganization of existing corporations 805 Sec. 641. Payment of capital stock 806 Sec. 642. Liabilities of stockholders 806 Sec. 643. Extension of business 807 Sec. 644. Change of place of business 807 Sec. 645. Taxation 808 Sec. 646. Place of business; assessment 808 Sec. 647. May hold stock in certain corporations 808 Sec. 648. Corporations may consolidate; agreement therefor 809 Sec. 649. Agreement to be submitted to stockholders ; stock of those objecting appraised and paid for 810 -Sec. 650. Powers of consolidated corporations 811 Sec. 651. Property, etc., transferred to new corporations 811 . Sec. 652. Rights of creditors •. 812 Sec. 653. District steam corporations; must supply steam; penalty; deposit may be required 813 ;Sec. 654. Agent authorized to enter buildings and examine meter; penalty for interference , 814 TAKLB OF CONTENTS. xlvii PAGE. Sec. 655. When agent may enter and cut off steam 814 Sec. 656. Laws repealed 815 Sec. 657. Saving clause 815 Sec. 658. Construction 815 Sec. 659. When to take effect 816 CHAPTER XXXIV. THE STOCK COBPOKATION LAW. Aeticle 1. General powers — Reorginization (§§ 660-666). 2. Directors and oflBcers — Their election, duties and liabilities-- (§§ 667-678). 3. Stock— Stockholders, their rights and liabilities (§§ 679-697). 4. Misscellaneous Provisions (§§ 698-701). ARTICLE I. GENERAL POWBBS — EEOBGASriZATIOIf. Sec. 660. Short title ^ 818 Sec 661. May borrow money and mortgage property 81* Seo. 662. Purchasers at sale of corporate property and franchise may become a corporation 819' Sec. 663. Contents of plan or agreement 8201 Sec. 664. Sale of property — possession of receiver and suits against him 821 Sec. 665. Stockholder may assent to plan of readjustment 822 Sec. 666. Combinations prohibited 823 ARTICLE IL DIEECTORS AND OFFICERS — THEIB ELECTION, DUTIES AND LIABILITIES. Sec. 667. Directors 824 Sec. 668. Change of number of directors 825 Sec. 669. When acts of directors void 825 Sec. 670. Liability of directors for dividends not rr»ade from surplus profits 825 Sec. 671. Liability of directors for unauthorized debts and over issue of bonds 826 Sec. 672. Liability for loans to stockholders 826 Sec. 673. Transfers of stock by stockholder indebted to corporation. . . 827 Sec. 674. Officers 82T Sec. 675. Oath of inspectors 82T Sec. 676. Books to be kept 828; Sec. 677. Annual report Sid" Sec. 678. False certificates, liability for 829 xlviii TABLE OF CONTENTS. ARTICLE IIL STOCK — STOCKHOLDBES, THEIE BIGHTS AND LIABILITIES. PAGE. Sec. 679. Stock, personal estate, corporation not to purchase 830 Sec. 680. Subscriptions to stock 831 Sec. 681. Must be paid for in cash, exceptions 831 Sec. 682. When payment of subscriptions to be made 831 Sec. 683. How stock may be increased or reduced 832 Sec. 684. Notice thereof to be given 832 Sec. 685. Meeting of stockholders for that purpose 832 Sec. 686. Exchange of preferred for common stock 833 Sec. 687. Certain transfers of stock and property prohibited 834 Sec. 688. Stockholders may pay proportional share of defaulted bonds. 834 Sec. 689. May compel execution of duplicate of lost certificate 834 Sec. 690. Proceedings in such cases 835 Sec. 691. May require statement of financial condition to be rendered. 836 Sec. 692. May call meeting to elect directors 836 Sec. 693. How stockholders may vote 837 Sec. 694. When to vote at special election of directors , 839 Sec. 695. When transfer agent of foreign corporation to exhibit books. 839 Sec. 6^. Liabilities of stockholders 839 Sec. 697. Limitation of Liabilities 840 AETICLE IT. miscellaneous PEOVISIOlirS. TSec. 698 Laws repealed 841 Sec. 699. Saving clause 841 Sec. 700. Construction 841 Sec. 701. When to take effect 842 CHAPTER XXXV. THE TEANSPOETATION COKPOEATIONS LAW. Aeticle 1. Ferry corporations (§§ 702-707). 2. Navk^ation corporations (§§ 708-711). 3. Stage-coach corporations (§§ 712-714). 4. Tramway corporations (§§ 715-718). 5. Pipe-line corporations (§§ 719-733). 6. Gas and electric light corporations (§§ 734-744). 7. Water-works corporations (§§ 745-750). 8. Telegraph and telephone corporations (§§ 751-756). 9. Turnpike, plank-road and bridge corporations (§§ 757-788). 10. Miscellaneous provisions (§§ 789-792). TABLE OF CONTENTS. xlix ARTICLE I. FEBRY COEPORATIONS. „ ^ ' PAGE. Sec. ^02. Short title of chapter 844 Sec. 703. Incorporation of ferry corporations 844 Sec. 704. Paymmt of capital stock 845 Sec. 705. Powers \ 845 Sec. 706. Effect of failure to pay in capital stock 845 Sec. 707. Posting schedule of rates 845 ARTICLE n. NAVIGATION COEPOBATION. Sec. 708. Formation of corporation 846 Sec. 709. Navigation between additional ports 847 Sec. 710. Pajnnent of capital stock 847 Sec. 711. Ferries unauthorized 847 ARTICLE III. STAGE COACH CORPOBATIONS. Sec. 712. Incorporation 847 Sec. 713. Alteration or extension of route 848 Sec. 714. Powers 848 ARTICLE IV. TBAMWAY COBPOBATIONS. Sec. 715. Incorporation 848 Sec 716. Powers 849 Sec 717. Condemnation of real property 849 Sec. 718. Crossings 849 ARTICLE V. PIPE LmE COBPOBATIONS. Sec. 719. Incorporation 850 Sec. 720. Location of line ■ 851 Sec 721. Condemnation of real property 852 Sec. 722. Railroad, turnpike, plankroad and highway crossings 853 Sec. 723. Crossings of canals, rivers and creeks 854 Sec. 724. Consent of local authorities 854 Sec. 725. Construction through villages and cities , 855 Sec. 726. Over Indian reservations 855 Sec. 727. Over State lands 855 4 1 TABLE OF CONTENTS. PAGE, Sec. 728. Additional powers 856 Sec. 629. Use of line to be public — Storage — Liable as common carriers — Rates and charges 357 Sec. 730. Eeceipts for property — Cancellation of vouchers 85& Sec. 731. Monthly statement 858- Sec. 732. Fences, farm crossings and use of line not enclosed 858 Sec. 733. Taxation of property 859 ARTICLE VI. GA8 AND ELBCTEIC LIGHT COBPOEATIONS. Sec. 734. Incorporation SBO Sec 7.35. Powers 860 Sec. 736. Inspectors of gas meters 861 Sec. 737. Deputy inspectors 862 Sec. 738. Inspection of gas meters 862 Sec. 739. Gas or electric light must be supplied on application 86.^ Sec. 740. Deposit of money may be required 864 Sec. 741. Entry of buildings to examine meters or lights 864 Sec. 742. Refusal or neglect to pay rent 865 Sec. 743. No rent for meters to be charged 865 Sec. 744. Price of gas 865 ARTICLE VII. WATEKWOEKS COBPOEATIONS. Sec. 745. Incorporation 86S Sec. 746. Must supply water — Village trustees may contract for same — Tax therefor 86T Sec. 747. Powers 868 Sec. 748. Survey and map 868 Sec. 749, Condemnation of real property 868 Sec. 750. Corporation may contract with other towns or villages — Amended certificate 869 ARTICLE VIII. TB^BGEAPH AJTD TELEPHONE COEPOEATIONS. Seo. 751. Incorporation 870 SBC. 752. Extension of lines 870 Sbc. 753. Construction of lines 870 Sec. 754. Transmission of despatches 871 Sec. 755. Consolidation of corporations 871 Sec. 756. Special policemen 872 TABLE OF CONTENTS. li ARTICLE IX. TTTENPIKB, PLAITK-KOAD AND BEIDGE COKPOEATIONS. PAGE. Sec. 757. Incorporation 873 Sec. 758. Restriction upon location of road 874 Sec. 759. Agreement for use of highway 874 Sec. 760. Application to board of supervisors 875 Sec. 76L Commissioners to lay out road 876 Sec. 762. Possession of and title to real estate 876 Sec. 763. Use of turnpike road by plank-road 877 Sec. 764. Width and construction of road 877 Sec. 765. Construction of bridges, obstruction of rafts prohibited 878 Sec. 766. Certificate of completion of road or bridge 878 Sec. 767. Toll-gates and rates of toll, and exemptions 879- Sec. 768, Toll gatherers 880 Sec. 769. Penalty for running a gate 880 Sec. 770. Location of gates and change thereof 880 Sec. 771. Inspectors, their powers and duties 882 , Sec. 772. Change of route, extensions and branches 883 Sec. 773. Milestones, guide-posts and hoist-gates 883 Sec. 774. Location of office of corporation 884 Sec. 775. Consolidation of corporations, sale of franchise 884 Sec. 776. Surrender of road , 885 Sec. 777. Taxation and exemption 885 Sec. 778. Hauling logs and timber 886 Sec. 779. Encroachment of fences 886 Sec. 780. Penalty for fast driving over bridges 887 Sec. 781. Acts of directors prohibited 887 Sec. 782. Actions for penalties 887 Sec. 783. Proof of incorporation 887 Sec. 784. When stockholders to be directors 888 Sec. 785. Dissolution of corporation 888 Sec. 786. Town must pay for lands not originally a highway 889 Sec. 787. Highway labor upon line of plank-road or turnpike 889 Sec. 788. Extension of corporate existence 890' ARTICLE X. miscellaneous peovisions. Sec. 789. Laws repealed 891 Sec. 790. Saving clause 891 Sec. 791. Construction 891 Sec, 792, Wliea to take effect 89^ TABLE OF CASES. A PAGE. Abbey v. Chase 34 Abbot V. American Hard Kub- ber Co. . .31, 32, 128, 387, 420, 578, 621, 626 Abbott V. Merriam 469 V. Omaha Smelting & Eef . Co 479 Abbott V. Shawmut Ins. Co . . . 49 Abby V. Billups 23 Aberdeen E. Co. v. Blaikie. ... 128 Accidental Ins. Co. v. Davis. . . 93 Aocouirting of Waite, Matter of 348 Ackerman v. Halsey 127 Aokerman v. Halsey 132 Acome v. American Mining Co. 482 Adams v. Beach 395 V. Crosswood Printing Co 47,137 V. Mills 641 V. Penn. Bk. of Pitts- burgh 492 Adams Exp. Co. v. Harris 481 Adamson's Case 141 Adderley v. Dixon 159 V. Storm 155 Adler v. Milwaukee Patent Brick Co. .99, 100, 304, 347, 373 Adriance v. Eoome 41, 577 Adsit V. Butler 374 Agate V. Sands. . .296, 634, 636, 656 Agra Bank, Ex parte 58 Ahrens v. State Bank 400 Akin T. Blanchard 577 PAGB. Albany City Ins. Co. v. Van Vranken 429 Albany Northern E. Co. v. Lansing 529 Albany & S. E. Co. v. Osborn 224, 226 V. Slaughter 94 Albertson v. Landon 398 Aldrick v. Howard 190 Alexander's Case 63 V. Cauldwell,....61, 577 V. Sizer 38 Allen V. Buchanan 398 V. Clarke 641 V. Curtis 466, 468 V. Dyker 150 V. Montgomery E. Co. . . 99, 100, 304 V. New Jersey S. E. Co . . 306, 399, 414, 415, 467, 504 Aller V. Town of Cameron 479 Allison V. Coal Creek and New Eiver Coal Co 200 AUman v. Havana E. & E.E. Co. 88 All Saints' Church v. Lovett, 395, 406 Alvord V. Smith 153 American Baptist Home Mis- sion Soc. V. Foote 481 American Central E. Co. v. Miles 113, 114 American Ins. Co. v. Oakley, 39, 40, * 54, 63, 350 V. Owen, 27, 489 v.. Stratton. 52 liv TABLE OF CASES. PAGE. American Life Insurance & T. Co. V. Dobbin 663 American Linen Thread Co., People ex rel, v. Assessors of Meehaniosville 225 American Linen Thread Co., People ex rel, v. Howland 224 American Silk Works v. Salo- mon 141 Ames V. Kansas 383 Amesbury v. Bowditch Ins. Co. 108 Anacosta Tribe v. Murbaoh, 104, 112 Anderson v. Newcastle & B. K. Co 91 V. Pierce 49 V. Speers 647, 656 Anderton v. Aronson 467 Andover & M. Turnpike Corpor- ation V. Gould 86, 97, 145 Andrews v. Hart 141 V. MoUer 351 V. Murray 642, 643 V. Sullivan 501 Angell V. Silsbury 376 Angler v. East Tennessee V. & G. R. Co 278 Anglo-Californian Bank v. Granger's Bank 106 Anonymous 133, 207, 488 Anonymous v. Gelpoke 349 Ansonia B. & C. Co. v. New Lamp-Chimney Co 295 Anvil Mining Co. v. Sherman. . 97 Ardesco Oil Co. v. North Amer- ican Oil & Mining Co 31 Arms V. Conant 34 Arnold v. Suffolk Bk 154 Arnot V. Plttston & E. Coal Co. 281 Arthur v. Griswold, 64, 624, 644, • 648, 669 Ash V. Guie 479 Ashbury E. C. & I. Co. v. Kiche 26 Ashe V. Johnson 159 Asheville Division v. Aston . . . 396 Ashley v. Kinnan 128 Ashpitel V. Sercombe 118 Ashtabula & N. L. E. Co. v. Smith 77, 84, 85, 87 PAGE. Ashuelot B. & S. Co. v. Hoit . . 79- Aspinwall v. Meyer 42 V. Ohio & Miss E. Co 275, 276 V. Sacchi 74, 176 Assurance Co. v. Commis- sioners of Taxes 213 Astor V. Westchester Gas Co . . 666 Atchapalaya Bank v. Dawson, 305, 399, 406, 409 Atchison C. & P. E. Co. v. Phillips Co 277 Athol Music Hall Co. v. Carey 79 Atkins V. Brown 49- Atkinson v. Pocook 90 Atlanta & E. A. L. E. Co. v. State 271, 272. Atlanta & W. P. E. Co. v. Hod- nett 94 Atlanta & G. E. Co. v. Georgia, 271 272, 278 Atlanta Dedaine Co. v. Mason . 144 Atlantic State Bank v. Savery,57, 59 Atlantic Cotton Mills v. Abbott 86 Attorney-General, In re appli- cation of 446 V. American Life Ins. Co 416 V. Atlantic Mut. Life Ins. Co 416, 421, 428 V. Bank of Chenango. . 499' V. Bank of Michigan 305,499' V. Bank of Niagara . . . 383, 395, 403, 448, 499, 500 V. Chicago & E. E. Co. 395 V. Clarendon 306 V. Continental Life Ins. Co 416, 434 V. Erie & K. E. Co., 393, 412 V. Gower 309 V. Guardian Mut. Life Ins. Co.... 342, 345, 360, 424, 425, 429, 434, 481 Attorney-General v. Life and Fire Ins. Co. 47, 345, 356 V. North American Life Ins. Co 317, 325, 430, 454, 484 TABLE OP CASES. Iv PAGE. Attorney-Genera] v. Peters- burgh & E. B. Co. 385, 393, 402, 404, 406, 409 V. Scott 205 V. State Bank 188 V. Stevens 383, 388, 397, 410, 499 V. Tudor loe Co. . .305, 383, 499 V. TJtica Ins. Co. . .305, 383, 499, 500 V. 'Wilson 135 People ex rel v. North American L. Ins. Co. 453 People ex rel v. Secur- ity L. Ins; Co... 439, 455 456 State ex rel v. Atchison 274 Attrill V. Bookaway Beach Imp. Co 356,365 Atwood V. Merryweather. .133, 138, 466 Auburn Academy v. Strong . . . Ill Auburn & C. P. Boad v. Doug- lass 23 Auburn Sav. Bank v. Brinker- hoff 663 Augusta Bank v. Earle 25, 494 Aurora Agricultural & H. Soc. V. Paddock 166 Aurora & C. B. Co. v. Lawrence- burgh 413 Austin V. Daniels '. . . . 469 V. Kawdon 355 Austin & N. C. B. Co. v. Gil- laspie 159 Averill v. Barber 126 Ayer v. Seymour 162 Ayrault v. Sackett 650 B Bach V. Pacific M. S. Co. . . .127, 457 Baohe v. Nashville Horticul- tural Society 397, 474 Bacon v. Kobertson 476 PAGE. Badger v. American Ins. Co . . . 42 Baglan Hall Colliery Co., Be. 87, 170 Bahia & S. F. B. Co., In re 158 Bailey v. Hannibal & St. J. B. Co 93 Baker's Case 83 Baker v. Backus Admr 409, 410, 411, 423 V. Backus. .305, 383, 384, 395 V. Printing Co 480 V. Star Print. &Pub. Co. 471 Baldwin v. Commonwealth. ... 159 Balliet v. Brown 31 Ballou V. Talbot 38 Baltimore & 0. B. Co., v. Gala- hue's Admrs 272 V. Harris 495 V. Supervisors of Mar- shall Co 397 409 Baltimore & P. Steamboat Co. V. MoCutcheon 26, 64 Baltimore City P. B. Co. v. Sewell, 96 Balsley v. St. Louis A. & T. H. B. Co., 23,24, 25 Baltzen V. Nicolay 159 Banco De Sima v. Anglo-Peru- vian Bank 56 Baner v. Sampson Lodge, Knights Pythias 112 Banet v. Alton & S. B. Co 79 Bangs V. Duokinfield.. 335,381, 425, 427 V. Mcintosh 305, 335 Bank v. Cook 51 Bank Commissioners v. Bank of Buffalo 339, 340, 342, 386, 393 Bank of Attica v. Manufac- turers' & T. Bank. ...'.... .153, 155, 156, 661 V. Pottier & Stymus Manuf. Co 41, 43 Bank of Augusta v. Earle. 18, 24, 27, 489 Bank of Bethel v. Pahquioque Bank 384 Ivi TABLE OF CASES. PAGE. Eank of Cincinnati v. Hall 27 Biink of Columbia v. Patter- sou's Ad'mr, 61 Banlc of Commerce v. New York City 235 V. Rutland & W. E. Co., 27, 489 People ex rel. v. Commis- sioners of Taxes 224 Bank of Commonwealth, Peo- ple ex rel, v. Commissioner of Taxes 224 Bank of Genessee v. Patchin Bank 486 Bank of Havana v. Magee 472 V. Wickham 662 Bank of Holly Springs v. Pin- son, 105, 106 Bank olXouisiana v. "Wilson. . , 309 Bank of Michigan v. Jessup. . . 490 Bank of Missouri v. Suelling. . . 396 Bank of Montreal v. Thayer. 133, 134 Bank of Mut. Eedemption v. Hill 130 Bank of Niagara, In Matter of, 358 V. Johnson, 305, 400, 414 Bank of Pittsburgh v. White- head .55, 57, 58 Bank of Poughkeepsie v. Ibbot- son 308, 376, 408, 556, 560 Bank of South Carolina v. Ham- mond 306 Bank of United States v. Dand- ridje 46, 124, 184 Bank of Utioa v. City of Utica. 215, 216, 217, 223, 224 V. Smalley 153, 155 Bank of Virginia v. Craig, ... 56, 57 Banks V. Votto^ 341 V. Sharp 36 Baptist Church v. Witherell . . 451, 500 Baptist Meetinghouse v. Webb. 396 Barclay v. Talman. . . .305, 306, 386, 387, 388, 395, 397, 408 PAGE^ Barclay v. Quicksilver Mining Co 31, 348 V. Wainewright 193 Bard v. Poole 26 Bardstown & L. B. Co. v. Met- calfe^ 166 Bardwell* v. ShefBeld W. W. Co 190 Bargate v. Shortridge 156, 161 Barker, Matter of 618 V. Mechanics' Ins. Co.. 47, 48, 52 Barksdale v. Finney 73 Barlow v. Congregational So- ciety 36 Barnes v. Brown 648 V. Neweomb 426 V. Ontario Bank 54 V. Perine 101 Barnett v. Chicago & Lake H. E. Co 473, 494, 495 Barren Creek Bitching Co. v. Beck, 395 Barril v. Calendar Insulating & Water Proving Co . . . . 113, 114 Barry v. Merchants' Ex. Co.. 22, 30, 31, 166, 662 Barstow v. City E. Co 113 Bartholomew v. Bentley. . .133, 134 Bartlett v. Drew, 194, 303, 443, 506 V. Tucker, 159 Barton v. Port J. & V. F. P. E. Co 662 Bassett v. St. Alban's Hotel Co 194 Basshor v. Dressel 409 Batemen v. Service 27 Bates V. Elmer Glass Manuf.Co. 344 V. Keith Iron Co 40 V. Lewis 90, 94 V. Maokilley 193 Bauer v. Sansom Lodge. Knights Pyttias 113- Bavington v. Pittsburgh & S. E. Co 93, 97 Bawknight v. Liverpool & Lon- don & Globe Ins. Co 495 TABLE OF CASES. Ivii, PAGE. Bayard V. Farmers' & M. Bank. 157, 160 Bayless v. Ome 305, 396, 465, 469, 500 Beach v. Pulton Bank 23 V.Smith.. 19 Bean v. Pioneer Mining Co 54 Beardsley v. Hotchkiss, 84 Beatty v. Marine Ins. Co 28 Beaty v. Knowler 23, 28 Beckett v. Houston 19, 143, 148 Beckitt V. Bilbrough 159 Bedell v. North America Life Ins. Co 343 Bee V. San Francisco & H. B. K. Co 115 Beene v. Cahawba & M. K. Co.. 79, 86, 142 Beers v. Bridgport Spring Co.. 189, 190 V. Phoenix G. Co.. 30, 63, 165, 168, 560, 582, 626 Belfast & M. L. K. Co. v. Bel- fast, 189, 190 V. Cotterell 86 V. Moore 77, 86 Belknap v. North America Life Ins. Co 417, 506 Bell's V Case 92 Bell V. Indianapolis C. & L. E. Co 316, 342 Bellav V. Hays 34, 36 Bellows V. Todd 34 Belmont v. Coleman 45, 642 V.Erie E.Co 305, 420, 425, 503 Bengston v. Thingvalla Steam- ship Co 486,487 Bennett v. Judson 64 V. LeBoy.. 314 Benson V. Heathom . . . 128, 133, 138 Bent V. Hart 73 Berford v. New York Iron Mine 194 Bergenthal, State ex rel., v. Bergenthal.... ........... 178 PAGE. Berks &D. T. P. Koad v. Myers, 33, 167 Berlin v. New Britain. 24 Berne v. Bank of England, 227, 490 Berridge v. Abernethy 636, 642 Berry, In re 340 Matter of, 331, 343, 344, 360, 424 V. Brett 345, 359 Bethany v. Sperry 45 Beveridge v. New York El. K. Co 193 Bigelow V. Gregory 479 Biggart V. City of Glasgow Bk. 82 Biglin V. Friendship Associa- tion, Matter of 152 Big Mt. Improvement Com- pany's Appeal 274 Billings V. Robinson 632 V. Trask 647 Bingham v. Rushing 304 V. Weiderwax, 309, 380, 662 Binney's Case 30 Bird V. Chicago I. & N. E. Co.. 160 Birmingham B. T. & J. E. Co. V. Locke 85, 145 Birmingham National Bank v. Mosser 637, 657 Biscoe v. Great Eastern E. Co. 274 Bish et al. v. Johnson et al., 274 277 Bishop V. Brainerd, 271, 272, 275,276 V. Eowe 48, 53 People ex rel., v. King- ston & M. Turnpike Corp., 386, 391 Bissell V. Michigan S. & N. I. E. Co 25, 26, 64, 406, 577 Black V. Delaware & E. Canal Co 32, 275 V. Homersham 191 V. Zaoharie..20, 153, 155, 156 Black & "White Smith Soc. v. Vandyke 112 Blackburn v. Selma M. & N. E. Co ...o .. 479» Iviii TABLE OF CASES. FAGE. Blackstone Manuf . Co. v. Black- stone 20 Black TJ. & B. Co. v. Clarke. . . 484 Blake's Case 92, 94 V. Griswold, 186, 196, 197,199, 641, 648, 670 V. Hinkle 100, 308 V. HoUey 483 V. Wheeler 670 Blanchard v. Kaull 478 Blatehford v. Boss, 32, 114, 275, 502 Blennerhassett v. Sherman 98 Bliven v. Peru Steel & Iron Co., 314, 315, 321, 373, 378, 382, 383, 389, 403, 416 Blodgett V. Morrill. ..90, 92, 94, 102 Bloomfield, etc., Gas L. Co., Matter of, v. Calkjns 528 Bloxam v. Metropolitan E. Co., 188 Board of Administrators of Charity Hospital v. New Orleans Gas-Light Co., 273, 278 Board of Commissioners, see Commissioners, Board of. Board of Com. of Frederick Seminary v. State 393 Board of Com. of Tippecanoe County V. Lafayett . . , 130 V. Beynolds....l27, 132 Board of Excise v. Curley 567, Board of Sup. v. Llvesay 475 Boardman v. Lake Shore & M. S. B. Co 189, 191, 192 Bogardus v. Bosendale Mfg. Co 443 Bogart V. DeBussy 35 Boggs V. Lancaster Bank 55 Bohannon v. Binns 396 Boisgerard v. ftew York Bank- ing Co 381, 389 Bolen V. Crosby 641, 642 Bolton, People ex rel., v. Al- bertson 634 Boltz V. Bidder. . .626, 638, 648, 670 Bomberger v. Turner, Adminis- trator 98 PAGE. Bonnellv. Griswold, 142, 198, 624, 641, 648, 669, 670 V. Wheeler, 641, 643, 647, 648 Booe V. Junction B. Co 276 Boom V. City of Utica 662 Booth V.Clark 423 Borland v. Haven 289 Boston & A. B. Co. v. Pearson, 143 V. Elchard- son 158 Boston & P. E. Co. v. New Tork &N. E. E. Co 31 Boston B. & G. B. Co. v. Well- ington 77, 84, 86, 97, 145 Boston Glass Manufactory v. Langdon, 99, 302, 303, 307, 316, 386, 388, 396, 397, 399, 406 Bostwiok V. Scott 374 Boughton V. Otis, 124, 183, 641, 643, 644 Bouwer v. Appleby 77 Bowden v. MoLeod 451, 500 Bowe V. Arnold 374 Bowen v. Irish Presbyterian Congregation ■. 314 V. Lease 620 Bowling Green & M. E. Co. v. Warren County Coiirt 23 Boyce v. City of St. Louis 23 V. Towsontown Station M. E. Church 479 Boyd V. Chesapeake & O. Canal Co 58, 473 V. Hall 290 V. Murray -. . . . 336 V. Peack B. R. Co., 19, 87, 160 Boyle V. Thurber 185, 197, 199 Boynton v. Andrews, 624, 635, 648, 670 V. Hatch, 624, 636, 647, 648, 669, 670 Boynton Saw & Pile Co., In re 314, 325, 329 Matter of 327 Brackett v. Griswold, 186, 197, 199, 648, 649 TABLE OF CASES. lix PAGE. Braddock v. Philadelphia M. & M.K.Co 90 Bradley v. Albemarle Fertiliz- ing Co 488 V.Ballard 26 V. Ballerd 479 V. Bauder 73 Bradt v. Benedict, 305, 306, 307, 316, 317, 376, 384, 401, 403, 408, 414, 560 Brady v. Mayor, etc.,' of Brook- lyn 662 V. New York 23 Branch v. Charleston 273, 277 Branch Bank v. Steele 55 Brandon Iron Co. v. Gleason, 302 397 Brandt v. Godwin 196 Bray V. Farwell 88 Brent v. Bank of Washington.. 154 Brewer v. Boston Theatre, 133, 137, 466, 468 V. Mich. Salt Assoc. 194 Brewers Fire Ins. Co. v. Burger 89 Brewster V. Baxter 54 V. Hartley 106 V. Iiime 157 V. Michigan Cent. B. Co 473 Brick Presbyterian Church, Matter of 547 Brick Church v. Mayor, etc., of New York 629 Bridgeport Bank v. New York &N. H. B. Co 56, 154 Bridger's Case 90, 94 Briggs V. Cape Cod Ship Canal Co 380, 396,478 V. Comwell 636 V. Easterly 185, 641 V. Partridge 35, 36 V. Penniman. . 300, 303, 304, 347, 376, 387, 389, 400, 408, 448, 560, 631 Brigham v. Mead 148 Bright V. Lord .191, 192 BrightweU v. Mallory 73, 153 PAGK Brinckerhoff v. Bostwicb . . 127, 131, 466 V. Browu, 302, 303, 560 Brinley v. Mann 34, 35, 36 Brisbane v. Delaware, ly'i, 191, 631 Bristol, Matter of 348 British Am. Land Co. v. Ames 27, 489 Broadway Bank v. MeElrath . . 155 Broadway & S. Ave. E. Co., People ex rel., v. Ciiramis- sioners of Taxes 226 Bronson v. Dimock ISa, 641, 645 v.Wilmington lus. Co. 100 Brooklyn Lyceum, Mattt !■ of.. 452 Brooklyn "W. & N. E. Co. . Mat- ter of 399, 4UU, 413, 524 Brooklyn Cent. E. Co. v. Brook- lyn City B. Co 316, 395 Brooklyn Park Commissioners V. Armstrong 530 Brooklyn Steam Transit Co. v. Brooklyn 413 Brooks V. Mexican Nat. Con- struction Co 493 Brockville & G. Turnpike Co. V. MoCarty 383, 395 Brouwer v. Appleby 479 V. Harbeck. . .331, 389, 390 V. HIU 424, 429 Brown v. A. B. G. Fence Co. . . 360 V. Bankers' & B. Tel. Co. 57 V. Commonwealth, 205, 206 V. Frost 350 V. Howard Fire Ins. Co. 157 V. Northrop 423 V.Smith, 635, 637, 638, 648 V. Vandyke 469 V. Winnisimmit Co 168 State ex rel. v. Bailey '. . 310 Brownlee v. Ohio J. & J. E. Co. 78, 84, 85, 89 Brownlessv. Ohio J. & J. E. Co. 77 Bruce v. Driggs 635 V. Piatt. . . .317, 637, 644, 646 V.Smith.... 155 Brufi V. Mali .146, 177, 603 Ix TABLE OF CASES. PAGE. Bruffett V. Great Western B. Co 316, 395, 398,413 BruDdage v. Brundage 191, 192 Bruyn v. Receiver of- Middle Dist. Bank HO Bryson v. Lucas 49 Buoher v. Dillsburgli & M. R. Co 77, 85, 89 Buck V. Barker 74, 183, 184, 185, 301 BuokfieldBr. K. Co. V. Irish.. 86, 87, 144 Buckley v. Briggs 54 Budlong V. Van Nostrand 46 Buell V. Buckingham 33 Buffalo V. Webster 112 Buffalo & A. B. Co. v. Gary. ... 74, 176, 305 Buffalo&J.E. Co. V. Clark.... 78 V. Gifford.. 77, 81, 85, 628 Buffalo & N. T. City E. Co. v. Dudley. .77, 78, 81, 93, 96, 142, 148, 149 Buffalo & P. B. Co. V. Hatch . . 142, 628 Buffalo Catholic Institute v. Bitter 36 Buffalo Mutual Gas Light Co., People ex rel., v. Steele. . . 220 Buffet V. Troy & B. B. Co. . . .22, 30 Bullard v. Bell 308 V. National Eagle Bk., 106, 154 Bunn's Appeal 194 Burbridge, Ex parte 59 Burch V. Newberry 336 Burch, Beceiver, v. West 47 Burke v. Conmrd R. Co 275 V. Smith 194 Burlingame v. Brewster. .48, 51, 53 Burlington v. Keller Ill Bumes v. Pennell 90 Burnett V.Chicago &L.H.B.CO. 491 Burr V. McDonald 34 V. Wilcox 19, 81, 82, 143, 149, 628, 634, 635, 637 PAGE. Burrall v. Bushwiek 73, 15S V. Bushwiek B. Co. . . . 155 Burrill v. Nahant Bank 34 Burroughs v. North Carolina B. Co 191 Burrows v. Smith 85, 87 Burt V. Battle 166, 190 Burton's Appeal 30 Butchers & Drovers' Bank v. MacDonald 484 Butchers, etc., Co., People ex rel., V. Asten 224, 225 Butchers' Benf. Assoc Ill Butler V. Cumpston 82: V. Duprat 626. V. Palmer 646. V. Smalley, 184, 199, 641, 648 Butterfield v. Beall 37 Butternuts & Oxford Turnpike Co. V. North 88; Butts V. Wood. . .114, 127, 128, 129, 131, 136, 167, 465, 467, 469, 502, 505, 621 Byers v. BoUins 12* Byrne v. New York B. & C. Co. 417 C. Cabot & W. S. B. Co. v. Chapin 88 Cabot Bank v. Morton 158- Cady v. Centreville Knit Goods Manuf . Co 305, 383, 493 Cagger v. Howard 340 Cagger, People ex rel., v. Dolan 230- Oahill v. Kalamazoo Mut. Ins. Co 104, 105, 123, 388, 396 Caldwell v. National M. V. Bk. 63 Caley v. Philadelphia & C. B. Co. 87 Calhoun v. Delhi & M. B. Co. . . 568 California Sugar Manuf. Co. v. Schafer 95 Callan v. Statham 98. Cambridge Water Works v. Somerville Dyeing & B. Co. 30S Camden & A. B. Co. v. May's Landing & B. H. C. B. Co. 26 V. Bemer. ... 2i TABLE OF CASES. Ixi PAGE. Camden Eolling Mill Co. v. Swede Iron Co 494 Came v. Brigham 157 Cameron v. Seaman . . . 183, 641, 644 Cammeyer v. United Gen. L. Church 623 Camp V. Byrne 483 V. IngersoU 299 Campbell v. American Zylonite . Co 161 V. Champlain & St. L. R. Co 491 V. Morgan 149 V. Union Bank 398 Canada G. W. K. Co. v. Wheeler 57 Canajoharie & Catsk. E. R. Co., Matter of 441 Canandaigua Academy v. Mc- Kechnle 472 Cape Breton Co., Ke 87 Cape Sable Company's Case, 33, 166 Capen v. Pacific Mut. Ins. Co. . 495 Capper's Case 84, 161 Carew's Estate, In re 59 Carey V. Cincinnati & C. K. Co., 412 V. Giles 398 Carlisle v. Cahawba & M. K. Co. 89, 144 V. Evansville I. & 0. S. L. R. Co 89 V. Saginaw Val. & St. L. E. Co., 81, 85, 95, 160 Carpenter v. Black Hawk Gold Mine Co 666 V. Central Park N. & E. K. R. Co.... 491 V. Farnsworth 48, 51 V. N.Y. & N. H.R.Co. 504 V. Roberts 505 Carr v. Ohartiers Coal Co 114 V. Commercial Bank of Racine 473 V. LeFevre 87, 170 V. St. Louis Ill Carrington v. Connecticut F. & M. Ins. Co 380 PAGE. Carroll v. MuUamphy Savings Bank 105 V. Savings Bank 10& Carson v. Ai'ctic Mining Co . . . 142 Carstairs v. Mechanics & Trad- ers' Ins. Co 495- Cartan v. Father Mathew Soc 110" Carter v. Ghaudron 35 Cartmell's Case 161 Cary v. Cleveland & T. R. Co . . 25 v. Schoharie Val. Machine Co 307, 414, 415 Case V. Mechanics' Banking As- sociation 185 Casserly v. Manners 502: Cassity, People ex rel., v 214r Castello's Case 84 Castle V. Belfast Foundry Co . . 49- V. Lewis 63, 617, 621 Castleman v. Holm.es 84 Catlin v. Eagle Bank 403 Catskill Bank v. Gray 560 Cattron v. First TTniversalist Society 47 Cayuga Lake R. Co. v. Kyle. . . 84 Cazeaux v. Mali 50S Cecil, In re 20ft Cent. Agricultural & M. Assoc. V. Alabama Gold L. Ins. Co. 479 Central Bank v. Empire S.D.Co. 582 V. Levin 57 Central City Sav. Bk. v. Walker 478 Central Crosstown R. Co. v. Twenty-Third Street R. Co. 395 Central Gold Mining Co. v. Piatt 30, 31, 666. Central Nat. Bank v. Connecti- cut Mut. Life Ins. Co 316; Cent. Ohio Salt Co. v. Guthrie 281 Central R. & Banking Co. v. Cheatham it. V. Georgia 272, 273 V.Smith 83 V. Ward 157 Central Trust Co. v. New York City&K. R. Co 231, 232 233, 620, 631 Ixii TABLE OF CASES. PAGB. Centre & K. Turnpike Co. v. McConaby 94, 396 Chaffee v. Luddeling 478 V. Fort 133 V. Eutland B. E. Co... 189 Chaffln V. Cummings 143 Chamberlain v. Pacific Wool G. Co 51 V. Painesville&H. K. Co 87, 88 v.Eoohester Seam- less Paper Ves- sel Co 340 Chamberlin v. Huguenot Mnf. Co 308 Mammoth Mining Co 473 V. Eochester Seam- less Vessel Pa- per Co.... 314, 325, 329, 337, 344 Chambers V. Faulkner 24 V. Lewis.. 298, 634, 635, 641, 644, 656 Chambersburgh Ins. Co. v. Smith ; 160 .... 161 Chandler v. Hoag, 129, 301, 641, 644 Chaplin v. Clark 118 Chapman's Case 81 Chapman v. Douglass 424 V. Mad River & L. E. R. Co 25 Charitable Corporation v. Sut- ton 130, 467 Charles Elver Bridge v. Warren Bridge 396, 406 Charleston Ins. & Trust Co. v. Sebring.„ 465 Charlestown Boot & Shoe Co. v. ■ Dunsmore 131 Charlotte & S. C. R. Co. v. Blakely 95, 160 Charlton v. Newcastle & 0. E. Co 275 f!hase v. E. T. Va. & Ga. R. Co. 86 V. Hawthorn 49 PAGE. Chase v. Sycamore & C. K. Co.. 95 Chautauqua County Bank v. Eisley 45,46,662 V. White 423 Chater v. San Francisco Sugar Eef.-Co 79, 96 Cheeney v, Lafayette, etc., E. Co 115 Cheever v. Gilbert Elevated R. Co. .... .46, 61, 64, 124, 168, 390 Chemical Nat. Bank v. Colwell 74 129, 185 Cheraw & C. E. Co. v. White . . 142 Cheeseborough Manuf. Co. v. Coleman. 577, 613, 614, 616,633, C38 Ohesapealie & O. Canal Co. v. Baltimore & O. E. Co., 302, 303, 305, 387, 391, 393, 396, 398, 399, 400, 406, 407, 411, 414 Chesapeake & 0. E. Co. v. Vir- ginia 277 Chester Glass Co. v. Dewey 19, 143, 149, 386 Chew V. Bank of Baltimore, 157, 160 Chicago & A. R. Co. v. Derkes 26 Chicago & N. W. . R. Co. v. Whitton 495 Chicago City E. Co. v. Allerton 106 V. People.. 391 v. Story. . . 392 Chicago Gas Light Co. v. Peo- ple's Gas Light Co 23, 60 Chicago Gas Light & Coke Co. V. People's Gas Light & Coke Co 24, 25, 281, 282 Chicago Life Ins. Co. v. Needles 388,390, 407 Chicago E. I. & P. E. Co. v. Mofat 272, 277 Child V. Hudson's Bay Co 105 V. Monins 48 V.Smith 581 Chincleclamouche Lumber Co. V. Commonwealth. 407 Choteau v. Dean 86 Choteau Ins. Co. v. Floyd. . . .90, 94 TABLE OF CASES. Ixiii Choteau Springs Co. v. Harris, 108, 155, 156 Christensen v. Colby 636 V. Eno, 101, 169, 631, 638 Christian Union v. Yount 27 Christian University v. Jor- dan 26, 54 Church of Holy Communion, People ex rel., v. Assessors of Greenburgh 253 Cincinnati Cooperage Co. v. O'Keefe 641 Cincinnati I. & C. R. Co. v. Clarkson 141, 170 Cincinnati T. & C. B. Co. v. Clarkson 87 Cincinnati U. & F. W. K. Co. v. Pearee 89 Citizens' Building L. &S. Assoc. V. Coriell 127, 132 Citizens' Gas Light Co. of Brooklyn, People ex rel. v. Assessors of City of Brook- lyn 212, 224, 225, 226 Citizens' Loan Assoc, v. Lyon 127, 132 Citizens' National Bank v. Elliott 114, 115 City Council v. Montgomery & W. Plank Koad Co 24, 28 City Hotel v. Dickinson 145 City Ins. Co. v. Commercial Bank 303, 316 Ciliy of Atlanta v. Gate City Gas Light Co 395 City of Buffalo, Matter of the... 529 City of Chicago v. Hall 295 V. Kumpff 281 City of Detroit v. Detroit & H. Plank Koad Co 396 V. Jackson 36 City of Kansas v. Hannibal & St. Jos. K. Co 37 City of London v. Vanacker, 104, 407 City of Ohio v. Cleveland & T. R. C 191 City of Providence v. Miller. . . 35 PAGE. City of St. Louis v. Russell. . . 28 City of Utioa v. Churchill 215 Claflin V. Drake 299 Clancey v. Onondaga Salt Co . . 386 Clapp v. Astor 192, 193 v. Peterson 194 V. Wright 637 Clark V. Continental Improve- ment Co 77, 84, 85 V. Farmers' Mnf. Co. .33, 558 V. Farrington 28 V.Hubbard 98 V. LeCren Ill V. Myers 650, 651 V. Titcomb 30, 31 Clarke v. Acosta 647 V. Omaha & S. W. R. Co. 32 V. Thomas 176 Clarke National Bank v. Bank of Albion 40 Clarkson v. Clarkson 188, 193 Olauson, People ex rel., v. New- burgh & S. P. R. Co 266 Clearwater v. Meredith. . .271, 272, 274, 275, 276, 277, 278 Clegg V. Chicago Newspaper Union 471, 480 V. Cramer 471 Clem V. Newcastle & D. R. Co. 89, 92, 93 Clements v. Bowes 84 V. Moore 98 V.Todd 77 Clerk of City Court, Matter of fees of 434 Clerks' Savings Bank v. Thomas 59 Cleveland & M. R. Co. v. Rob- bins 152, 191 Cleveland Iron Co. v. Ennon. . . 89 Clinch V. Financial Co. 31, 275, 277 V. South Side R. Co. 343, 460 Clubb V. Davidson 122, Coburn v. Boston Papier Mache Manuf. Co 99, 316: Cochran v. American Opera Co 297, 300 V. Arnold 383, 484. Ixiv TABLE OF CASES. PAGE. Cochran v. Smith 169, 186, 298 Coe V. Columbus P. & I. E. Co. 28 Coffin V. Collins 83 V. Eansdell 87, 169 Cogswell V. Bull 468, 469 Coil V. Pittsburgh Female Col- lege 102, 396 Colchester v. Seaber 309 Cole V. Knickerbocker L. Life Ins. Co 417, 505, 506 V. Ryan 153 Coleman v. Coleman 479 V. Spencer 96 V. White 290, 372 Coles V. Iowa State Mut. Ins. Co 113 Collins V. Buckeye, etc., Ins. Co 48, 53 Colquitt V. Howard 469 Colt V. WooUaston 118 Columbia Bank v. Patterson. . . 39 Columbian Ins. Co., Matter of, 360, 361, 444 Columbine v. Ohicester 159 Coman v. Lackey 666 Combe's Case 35 ■Comeau v. G-uild Farm Oil Go. . 155 Comins v. Coe 141 "Commercial Bank v. Chambers 309 V. Kortright.. 153, 629 ■Commercial Bank of Buffalo v. Kortright 63, 154, 155, 630 ■Commercial Bank of Natchez v. State. . . .392, 393, 394, 409, 411 Commercial Ins. Co., People ex rel., V. Supervisors of N.Y. 216 Commissioners' Board of, v. Shields 484 Commrs. of DBuglass County v. 8 Bolles 493 Commissiomers' of Fern. Sem. v. State 391 Commissioners of Walker v. De- vereaux 83 Commissioners v. Turner 104 Common Council of Brooklyn Matter of 531 PAOE. Commonwealth F. Ins. Co. Mat- ter of 434 Commonwealth v. Alleghany Bridge Co 393,411 V. Atlantic & G. W. E. Co..* 272 V. Blue Hill Turnp. Co. 390 V. Bringhurst 206 V. Church of St. Mary's. 42 V. Commercial Bank. . . 384, 385, 390, 393, 407 V. Cullen. . ..32, 302,388, 396 V. Erie & N. E. E. Co.. 23 V. Erie & P. E. Co 188 V. Farmers' Bank 411 V. Fitchburg E. Co. . 27, 405 V. Franklin Ins. Co. 385,403 V. Gill 110 Y. Barley 134 V. Massachusetts Turn- pike Co 394 V. Morris 396 V. Pittsburgh & C. E. Co. 394, 399, 411 V.St. Mary's Church.... 33 V. Smith 30 V. Tenth Massachusetts Turnpike Co 409, 410 V. Turner 104 V. Union F. & M. Ins. Co. 406, 411 V. Westchester E. Co . . . 19 V. Woelper 207 V. Worcester 110 Oompton V. New Jersey E. Co '.. 107 V. Van Volkenburgh & N. J. E. Co 104 Oomstock V. Drohan 188, 194 Concordia Savings & Aid Assoc. V. Eead 486 Congar v. Chicago & N. E. Co. 55, 56 Congregational Soc. v. Perry . . 483 Conklin v. Furman 636 V. Second Nat. Bank. . . 106 TABLE OP CASES. Jxv Connecticut & P. E. E. Co. v. Bailey. ..86, 90, 91, 94, 145, 397 Conover v. Insurance Co 61 V. Mutual Ins. Co. of Albany 60 Conro V. Gray 137, 334, 336, 402, 417, 424 V. Port Henry Iron Co. 42, 47, 55, 402 ■Conroe v. National Prot. Ins. Co 578 Oonsols Ins. Co. v. Newall 85' Continental Nat. Bank T. Eliot Nat. Bank 20,155 Contract Corporation, In re . . . 56 Cook V. Berlin W. M. Co 167 V. Chittenden Bank 96 Cooper V. Frederick 108 V. McKeet 144 Copeland v. Johnson Manufg. Co 60 Corbettv. Woodward 167 Corey v. Long 423 Cork & B. E. Co. v. Cazenove. . 84 Cork & Youghal E Co. v. Pat- terson 277 Cornell v. Roach 641, 644 Corning V. McCullough. .. 290,309 V. Mohawk Valley Ins. Co 372 Comthwaitev. First Nat. Bk.. 48 Coiry t. Londonderry & E. E. Co 189 Corwith V. Culver 89 Cotheal v. Brouwer 659 County of Leavenworth v. Barnes 483 County of Morgan v. Allen 194 Courtright v. Deeds 144, 149 Covington & 0. Bridge Co. v. Mayer 272 Co well V. Springs Co 27 Cox's Case 82 Coyne v. Weaver 349 Coyote G. & S. M. Co. v. Euble 189 Cozart V. Georgia E. & B. Co. . 26 Craft V. Ooykendall 642 PAGE. Craft V. McConoughy 281 Cragg V. Eiggs 193 Craig V. Presbyterian Church. 206 Craigie v. Hadley 98, 133 Crampton v. Varna E. Co 42 Craw V. Easterly 641 Crawford v. Ehorer... 87, 170, 194 V. Wiek 281 Crawfordsville&S. W. T. P. Co. V. Fletcher. . 272, 276, 277, 390 Crease v. Babcock 399 Creswell v. Lanahan 26 Crocker v. Crane 141 Crooked L. N. Co. v. Keuka N. Co 626 Crosby, Matter of, v. Day 355 Cross v. Jackson 101 V. Pinckneyville Mill Co 79 V. Sacket 483, 512 Grossman v. Penrose Ferry B. Co 90 Croton Ins. Co., In re 349, 440 Croton Ins. Co. Matter of. 429, 439 Crown Point Iron Co. v. Fitz- gerald 471, 486 Crump V. United States Mining Co 92, 93, 383, 397 Cucullu V. Union Ins. Co 79 CuUinan v. New Orleans Ill Cumberland Coal Co. v Sher- man 55, 104,127, 167 Cunningham v. Edgefield & Ky. E. Co 91, 93, 102 V. Pell 27, 135, 465, 467, 489, 494, 501, 502 Currie v. White 191 Curien v. Santini 396, 411 Curran v. Arkansas 304, 476 Curtis' Case 84 Curtis V. Leavitt. . 52, 578, 646, 662, 663 Curtiss V. Leavitt 423 Cushman v. Shepard 557, 560 v. Thayer Manuf. J. Co. 631, 637 Custar V. Titusville Gas & Water Co 90, 92, 95 5 Ixvi TABLE OP CASES. PAGE. Custer V. Tompkins County Bank 59 Cutting V. Damarel, 160, 632, 661 663 Cuykendall v. Corning 634, 656 V. Douglas 352, 652, 654, 655 Dabney v. Stevens. ..41, 42, 62, 184 577 Dallas V. Atlantic & Miss. K. Co 494 Dalton & M. K. Co V. McD aniel, 99 Dambman v. Empire Mills. 376, 417 Dana v. Bank of United States, . .30 V. Brown 154 V. Fiedler 150 V. United States Bank . 401 Danbury & N. E. Co. v. Wilson 81, 86, 413 Danforth v. Schoharie Turnpike Co 40, 63 Danneymeyer v. Colman 468 Danville & W. L. Plank R. Co. V. State 411 Danville Bridge Co. v. Pomroy 55 Darnell v. State.. .384, 390, 407, 411 Darst V. Gale 26 Dartmouth College v. Wood- ward 23, 24, 28, 407 Dauchy v. Brown 308 Davenport v. Dows 133,138, 465 V. Peoria M. & F. Ins. Co 54 Davidson's Case 90, 94 V. Grange 81 Davis V. Duke of Marlborough 423 V. Dumont 91 V, England. . . .48, 50, 52, 54 V. Garr 101 V. Gemell 464, 466 V. Meting House Ill V. Old Colony B. Co. . . . 23 Davis Wheel Co. v. Davis Wag- on Co 98 Day V. Newark India Rubber Co 495 496 V. Stetson 406 Dayton v. Borst.77, 78, 86, 144, 352 PAGE.. Dayton W. V. & X. Turnpike Co. V. Coy 95 Deaderick v. Wilson 465, 469' Dean v. DeWolf 650 V. Mace 650 V. Whiton 650 De Bemer v. Drew 491 DeBost V. Albert Palmer Co. 41, 55, 61 DeCamp v. Alward 302, 303, 401 DeCaumont v. Bogert 630 Decker v. Freeman 34 Defries v. Creed , 340 DeGroff v. American Linen Thread Co 45, 46, 576 Delaney, People ex rel. v. De- laney 252. Delano v. Case 133 Delaware & S. Canal Co. v. San- som 145 Deming V. Bullitt 36 V. Pitieston...l23, 124, 388, 635 DeMony v. Johnson 304 Denike v. New York & E. L. & C. Co. 305, 306, 315, 380, 381,. 382, 389, 390, 395, 411, 416, 425, 445, 666 Denton v. Macneil 92: Department of Public Parks, Matter of 527, 540 Derrenbacher v. Lehigh Valley R. Co 487 Derringer's Adm'r v. Derrin- ger's Adm'r 22 DeRuyter v. St. Peter's Church 30, 547 Deslandes V. Gregory 38 Detroit v. Dean 133, 137 Devendorf v. Beardsley 429 V. Dickinson 423 Devoe v. Ithica & O. R. Co. 335,375 425 Dewey v. St. Albans Trust Co. 308, 384, 397, 402 Dewing v. Perdecaries 157 DeWitt V. Hays 501 TABLE OP CASES. Ixvit FAQE. DeWitt V. Walton 38 Dexter & M. Plankroad Co. v. Millerd 86,142 Diamond Match Co. v. Eoe- ber 475, 483 Dickinson v. Central Nat. Banli 20, 155 Diligent Fire Co. v. Common- wealth 23 Dill V. Wabash Valley E. Co. . . 99 Dillingham v. Snow 45 Diman v. Providence W. & B. E. Co 81 Directors of Central B. Co. v. Kisch 91 Directors of Maryville College V. Bartlett 397 Direct U. S. Cable v. Dominion Telegraph Co 490 Dispatch Line v. Bellamy Mnf. Co 34 Diven v. Duncan ? 308 Dixv. Shaver 88 Dock V. Elizabethtown S. Mnf. Co 55 Doctor V. Duggenheim 642 Dodge V. Woolsey 469 Doggett V. Hart 501 Dolan V. Court Good Samaritan 112 Doloret v. Eothschild 159 Dolph V. Troy Laundry Ma- chine Co 281, 282 Dooley v. Cheshire Glass Co. . . 479 Dorris v. French 581, 627, 628 V. Sweeney 635 D.ougan Case 277 Douglass V. Ireland 624, 625, 648, 669, 670 Dow V. Gould & C. S. M. Co. . . 20 V. Memphis & L. E. E. Co. 170 Downle v. White 90, 94, 95 Downing v. Mt. Washington E._ Co 22, 23, 28, 83 Doyle V. Peerless Petroleum Co 305,383, 397 Drake v. Hudson Eiver E. Co. 104 Draper V. Beadle 670 PAGE. Draper v. Massachusetts Steam Heating Co 49 Drinkwater v. Portland Marine E. Co 308 Driscoll V. West Bradley & C. Manuf. Co.... 106, 154, 631, 661 Drover v. Evans 79, 81 Drummond's Case 87, 169 Dublin & W. E. Co. v. Black. . 84 Dubois, Matter of, 320, 321, 325, 339 Duchess & C. E. Co. v. Mabbett 77 Duckett V. Gover .133, 138 Duckworth v. Eoaoh 645 Duke V. Cahawba Navigation Co 155, 395 Duncan v. Jaudon 157 Duncomb v. New York H. & N. E. Co 620 Duncuftv. Albrecht 159 Dunham v. Rochester Ill Dunkerson, In re 107, 154 Dunkirk E. Co., People ex rel., V. Cassity 224 Dunn V. St. Andrew's Church . . 40, 54, 63 V. Star F. Ins. Co 630 V. Weston 49 Dunston v. Imperial Gas Light Co 105 Durant v. Abendroth 79 Dutchess & Col. E. Co. v. Mab- bett 85 Dutchess Cotton Manuf. Co. v. Davis 78, 96, 142 Duvall V. Craig 36 Duvergier v. Fellows 153 Dwyer v. Eathbone, Sard &Co. 41 Dyerv. Walker 396 Dynes V. Shaffer 90 E. Eagle Iron Works, Matter of. . 33S Eakright v. Logansport & N. J. E. Co 85, 89 Earp's Appeal 190, 193; Ixviii TABLE OF CASES. PAGE. JEast New York & J. R. Co. v. Elmore 501 East New York & J. E. Co. v. Lighthall 141 East Eiver Bank v. Rogers . . . 487 East Tennessee Iron Manuf. Co. V. GaskeU 483 East Tennessee & Va. K. Co. v. Gammon....... 90,92 Easterly v. Barber. . . .200, 201, 645, 646 ^Eastern Archipelago Co. v. Eeg 390, 392, 407 Eastern Plank Eoad Co. v. Vaughan 78, 145 Easton Nat. Bank v. Buffalo Chem. Works & Bushwick Chem. Works 374 East Elver Nat. Bk. v. Gove. . 61 Eaton V. Aspinwall 176, 479,635, 645 V.Avery 134 Ebbett'sCase 83 Echols V. Cheney 35, 36 Eddy V. Co-operative Dress Assoc 423, 428, 438, 441 Eden Musee American Co., Peo- ple ex rel., v. Carr 174, 175 Edgington v. Fitzmaurloe 134 Edinboro Academy v. Eobinson 79 Edison Electric Light Co. v. New Haven Electric Co . . . 278 V. Westinghouse .... 279 JEdmunds v. Brown 309 Edson Eecording Alarm Gage Co., In re 329 Edwards v. Bringier Sugar E. Co 141 V. Edwards 340 Elevator Co. v. Memphis & C. E. Co 23 Elizabethport Manuf. Co. v. Campbell 27, 489 Elkins V. Camden & A. E. Co. 188 IlUicott V. Warford 423 Jillis V. Howe Machine Co 577 V. Proprietors of Essex TJlSS. Merrlmac Bridge 148 Ellison V. Mobile & O. E. Co., 89 92, 93 Elwell V. Dodge 124 V. Shaw 34, 35, 37 Ely V. Holton 568 V. Sprague 191 Elysville Co. v. Okisko Co 83 Emerson v. Auburn & O. L. E. Co 473 V. McCormiok H. M. Co. 473 V. New York & N. E. E. Co 190 V. Providence Hat. Co. 38 Emmet v. Eeed 40 Empire City Bank, Case of, .360, 362, 479 Emrie v. Gilbert & Co 98 Endsley V. Strock 36 Enfield Toll Bridge Co. v. Con- necticut Eiver Co 395, 409 Erickson v.*Nesmith 100, 290 Erie & N. E. E. Co. v. Casey, 398, 399 Erie &N. Y. City E. Co v. Owen 78 Erie E. Co. v. Eamsey 300 Erwin v. Oregon E. & Nav. Co., 274, 491, 492 Esmond v. BuUard 641, 642, 656 Essex Bridge Co. v. Tuttle. .79, 142 Essex Turnpike Corp. v. Col- lins 81, 86 Estate of Woodruff 193 European & N. A. E. Co. v. Poor 136, 167 European Bank, In re 96 Evans, Ex parte 340 V. Small Combe 26 Evansville I. & C. S. L. E. Co. V. Posey 89 Evansville Nat. Bank v. Metro- politan National Bank 154 Everett v. Xockwood • ■ • 351 Ewing V. Savings Bank & T. Co 25 Executors of Gilmore v. Bank of Cincinnati, 99 TABLE OP CASES. Ixix PAGE ^xeelsior Grain Binding Co, v. Stayner 19, 79, 648 Excelsior Pet. Co. v. Embury. 647 V. Lacey 646 Exchange Banking Co. In re. . . 188 Ex parte, see name of party F. Factors & T. Ins. Co. v. Marine Dry Dock &S. Co 55, 57 Faile, People ex rel. v. Ferris. 123 Eairfleld Sav. Bank v. Chase . . 59 Eairfield Turnpike Co. v. Thorp 59, 105, 106 Fanning v. Hlbernia Ins. Co. . . 77 Earmers' & C. Bank v. Payne 57, 59 Earmers & Drovers' Bank v. Williamson 483 Earmers' & Mech. Bank v. Butchers' & Drov. Bank. . . 40 V. Empire S. D. Co 628 V. Little 309, 310 V. Wasson 106, 108, 156 Earmers' Bank v. Inglehart. . . 153 Farmer's Loan Co. v. Curtis . . . 625 Farmers' Loan & Trust Co. v. Carroll 28, 578, 662 V. Clowes 45, 46 166 V. City of New York 215, 216, 223, 224, 227, 228 V. Curtis 45, 662 V. Farmers' Loan & Trust Co. of Kan sas 71 Eamsworth v. Minnesota & P. R. Co 399 V.Wood... 352, 376, 634,637 Earrar v. Gilman 49 Farrel Foundry v. Dart 59 Faurie v. Millaudon 468 Fayles v. Hannibal Nat. Ins. Co 54 Fay V. Noble 478 Fee V. New Orleans G. L. E. Co. 272, 278 Eeeney v. People's Fire Ins. Co. 581, 662 PAGE. Fees of Clerk of City Court, Matter of 434 Fenlon v. Dempsey 179 Ferguson v. Hillman 98 V. Wilson 149, 159 Ferris v. Strong 383, 503 Ferry v. Bank of Central New York 389 Field V. Cooks 79, 479 V. Pierce 73 Finley & S. L. Co. v. Kurtz. . .. 150 Firemen Ins. Co. v. Ely 28 First National Bank v. Almy 478 V. Doying 480 V. Gifford 148 V. Green 185 V. Hurford 93 V. Lanier 107, 111, 154 V. Salem Capital & Flour- mills Co 168 First Nat. Bank of Bethel v. Nat. Pahquioque Bank. . . . 303 First Nat. Bank of Charlotte v. National Exchange Bank of Baltimore 83 First Nat. Bank of Hightstown V. Christopher 58, 59 First Nat. Bank of Northamp- ton V. Doying 471 First Nat. Bank of Selma v. Colby 309, 310 First Nat. Bank of South Nor- walk V. Fenton 641 First Kef. Church v. Bowden, 465, 502 Fisher v. Brown 157 V. Evansville & C. T. E. Co 274, 275, 276 V. Marvin '. 656 V. Mississippi & T. E. Co 19, 160 V. Salmon 36 V. Shelver 98 V. World Mutual Ins. Co 135, 499 Fisk V. Chicago K. I. & P. E. Co 27, 419, 489 Ixx TABLE OF CASES. PAGE. Fisk V. Keeseville Woolen & Cotton Manuf . Co 560 Fiske V. Eldiidge 36 Pisterv. Larue 40, 63 Pitch V. American Popular Life Ins. Co 656 Fitzpatrick v. Dispatch Pub- lishing Co 176 Pleckner v. President & Direc- tors of the Bank of United States 61 Pleming v. Slooum 64 Fletcher v. McGill 87, 170 Flint V. Pierce 104, 105 Flint &F. P. K.Co. v. Woodhull 398 Folger V. Chase 49 V. Columbian Ins. Co. 303, 307, 316, 380, 396, 401, 411 Foot, In re 192 Formanv. Howard Ben. Assoc. 112 Forbes v. Memphis E. P. K. Co 133, 138 V. Whitlock 469 Formany. Bigelow 87, 170 Forest v. Forest 314 Forster V. Fuller 48 Fort Edward & Fort Miller Plankroad Co. v. Payne. ... 87 Fort Madison Lumber Co. v. Batavian Bank 155 Ft. Worth Street K. Co. v. Eosedale Street B. Co 25 Foss V. Harbottle 468 Foster V. Ohio-Colorado Beduc- tion Mining Co 41 V.Seymour 87, 170 Fothergill's Case 77, 141 Fowler v. Shearer 35, 36 Fox V. Clifton 82, 88, 153 V. Erie Preserving Co. . . . 471 Frank v. Levie 480 Franklin Bank v. Commercial Bank 23, 24, 25 Franklin Co. v. Lewiston Sav. Bank 83 Franklin Fire Ins. Co. v. Jen- kins 132, 494 PAGE. Franklin Glass Co. v. White.. 97 Frazler v. Wilcox 30 Freeland v. McCullough 309 French Manuf. Co. Ex parte . . 130 Matter of 325, 329, 420 French v, Buffalo N. Y. & E. K. Co 131 V. McMillan 658, 672 Frost's Lessee v. Frostburg Coal Co 397 Frost V. Walker 479- Frothingham v. Barney. . . .33, 274, 305 Fry V. Lexington & B. S. E. Co 81, 84, 86, 144 Fulgam V. Macon & B. E. Co., 143, 148 FuUam v. West Brookfield, 35, 3ft Fuller V. Plainfield Academic School 23 V. Eowe 478 Fulton Bank v. New York & S. Canal Co 55, 58, 59 Fulton Co. V. Mississippi & W. E. Co 276 G. Gadsden V. Woodward. 641, 643, 645 Gaff V. Flesher 96, 100, 479 Gains v. Coates 22 Gale V. Lewis 5ft Galena & S. W. E. Co. v. Ennor. 94 Galveston City Co. v. Sibley.. 152 Galveston Hotel Co. v. Bolton.. 77 Galwey v. United States Steam S. Eefining Co 315, 454 Gano V. Chicago & N. W. E. Co 41 Gardiner v. Pullen 159 Gardiner V. Pollard. .131, 467, 504, 505 Gardner v. Butler 114, 115 V. Lansing 374 Gamett v. Eichardson 478 Garrett v. Burlington Plough Co 167 TABLE OF CASES. Ixxi PAGE. Garret v. Dillsburg & M. B. Co 96 Garrison v. Combs 34, 38 V. Howe 294, 298, 300, 308, 560, 635, 637, 643, 645 Gartside Coal Co. v. Max-well. . 478 Gashwiler v. Willis 34, 42 Gas Light Co., People ex rel., V. Board of Assessors 223 Gay lord v. Fort Wayne M. &C. K. Co 411 Gaylors v. Fort Wayne M. & C. K. Co 306 Geisenheimer v. Dodge 643 Gelpcke v. Blake 89 Georgetown Union Bank v. Laird 156 General Ins. Co. v. United States Ins. Co 57, 58, 59 General Providence Ins. Co., In re 42 Genesee County Bank, People ex rel., v. Olmsted 224 German E. Congregation v. Pressler 157 German Security Bank v. Jef- ferson 154 Germantown Passenger B. Co. V. Fitler 99, 303 Oibbs V. Queen Ins. Co 491, 493 Gilbert's Case 153 V. Manchester Iron Co. 153, 155, 156 Glldersleeve v. Dixon 642 Giles V. Hutt 145 Gill T. Balis 90, 95 V. Kentucky & C. G. & S. Min. Co 79, 86 V. New York Cab Co.. 113, 114, 128 Gillet V. Fairchild 429 V. Moody 423 Gilling V. Independent G. & S. M. Co 473 Gilman v. Green Point Sugar Co 315, 397 Gilmoie v. Pope 97 PAGE Gilmore, Executors, of, v. Bank of Cincinnati 99 Glaize v. South Carolina B. Co. 473 Glen V. Breard 473 Glens Falls Ins. Co., People ex rel., V. Ferguson 224 Glens Falls Paper Co. v. White, 641, 642, 648 Glenn Iron Works, In Matter of 100 Goddard v. Merchants' Ex- change 108 Goff V. Hawkeye & W. M. Co. . 89 V. Winchester College 95 Goffin V. Beynolds 651 Goodrick v. Beynolds 91, 102, 141, 483 Gordon v. Comes 235 V. Preston 33, 166 V. Bichmond F. & P. B. B. Co 190 Goshen Turnpike B. Co. v. Hurtin 19, 78, 97, 142 Goshen Twp. v. Springfield. . . 24 Goshom et al. v. Supervisors.. 272 Gosling V. Veley 104 Gould V. Mortimer 350 V. Bay 48 Gould, People ex rel., v. Mu- tual Union Tel. Co 446 Gouraud v. Edison-Gower B. T. Co. of Europe 474 Graff V. Pittsburgh & S. B. Co., 90, 91, 94 Graham V. Atlanta Hill Co., 666, •667 V. Boston H. & E. B. Co 272 V. Hoy 303 Grand Gulf Bank v. Archer 396 Grand Gulf B. & B. Co. v. State 316 Grand Lodge of Alabama v. Waddill 24 Grand Bapids Bridge Co. v. Prange 396 Grand Trunk, etc., B. Co. v. Brodie 118 Ixxii TABLE OF CASES. PAGE. Grangers' Market Co. v. Vin- son ft. Gray v. New York & V. S. S. Co 466,467, 504 V. Portland Bank 106, 150 Greason v. Goodwillie Wyman Co 434 Great Falls & G. K. Co. v. Copp 144 Great Falls Ins. Co. v. Harvey 107 Great L. B. Co. v. Magnay 167 Greaves v. Gouge, 465, 468, 469, 504 Greeley v. Smith 309, 310 Green v. Barrett 118 V. Merchants' Ins. Co . . 75 V. New York Cent. R. Co. 662 V. Seymour 409 V. "Walhill Nat. Bank. . . 316 Green Bay & M. E. Co. v. Union Steamboat Co 24 Greenbrier Lumber Co. v.Ward, 383, 385, 397 Green County v. Conness 277 Greene v. Dennis 45 Greenpoint Sugar Co. v. Kings Co. Manuf. Co 666 V. Whitin 666 Greenwell v. Nash 98 Gregory v. Lamb. 41 V. Patchett 466, 469 Griswold v. Peoria University. 79 V. Seligman 81 Groesbeeckv. Dunsoomb...337, 425 Grosse Isle Hotel Co. v. I'An- son's Exrs 142 Groton Ins. Co. Matter of 357 Grubbs v. Wiley 35 Gulf 0. & S. F. E,. Co. V. Morris. 25 V. Neely. . 96 Gun's Case 85 Gurney v. Atlantic & G. "W. E. Go 440 Gustard's Case 161 Guthrie V. Imbrle 48, 50 H. Haokley v. Draper 345, 433 Hadley v. Eussell 100 PAGE, r V.Cleveland 479 Hagerman v. Empire State Co. 495 Hagers Town Turnpike Co. v. Creeger 45 Hague V. Dandeson 191 Haight v.'Day 388 V. Naylor 48, 52 V. New York Elevated E. Co 399, 420 Halle V. Pierce 54 Hale V. Eepublican Eiver Bridge Co 190 V. Sanborn 88 V. Woods 34, 35 Hall, Ex parte 81 Astoria Veneer Mills & Lumber Co 338 V. Kellog 188 V. Slegel 636, 643 Halliday V. Noble 348, 349, 432 Hallows V. Fernie 92 Halstead v. Dodge 641, 644 V. Mayor of New York, 23, 662 Hamilton & D. P. R. Co. v. Eiee 77, 83, 84, 85, 144 Hamilton v. Annapolis & E. E. Co 39& Hammet v. Little Eock & N. R. Co 395 Hammond v. Strauss 144 Hamtramck v. Bank of Ed- wards ville 406, 483 Hancock v. Yunker 35 Handy V. Draper. 634, 635, 637, 657 Hann v. Barnegat& Long Beach Improvement Co . ... 491 V. Barnegat & L. B. & I. Co 492 Hanna v. Cincinnati & P. W. B. Co 277 Hanover Fire Ins. Co., People ex rel., V. Coleman 217 Hanover I. & S. E. Co. v. Halde- man 97 Harding v. Vandewater 45- Hardmanv. Sage 637 TABLE OF CASES. Ixxiii PAGE. Harden v. Newton 123 Hardy v. Pilcher 49 V. Merri weather 102 Harlem Canal Co. v. Seixas.78, 630 Harmon v. Page 304 Harmony Fire & Marine Ins. Co 361, 362, 363, 455 Harpending v. Munson 620 Harper v. Chamberlain 482 Harpoldv. Stobart 161, 162 Harriman, People ex rel. v. Paton 659 Harrington v. "Workingmen's Benevolent Assoc 112, 157 Harris v. First Parish 301 V. McGregor 85 V. Mississippi Valley & S. I. R. Co.. 302, 385, 388 391, 392, 393, 396, 403, 407 V. Nesbit 395 V. Norvell 650 V. Thompson 560 Harrison v. Mexican E. Co. . . . 190 V. Vines 73 Harrod v. Hamer 478 Hart's Case 84 Hart V. Boston H. & E. E. Co. 385 V. Frontino Mining Co. 157 Hartford &N. H. E. Co. v. Cros- well 32, 142, 274, 664 V. Kennedy 79, 142 Hartford C. & E. Co. Ex parte. 528 Hartford City Ins. Co. v. Car- rugi 473, 495 Hartford Ins. Co. v. Carugi 495 Hartsville University v. Ham- ilton 395 Haskins v. Harding 304, 347 Haslett V. Wotherspoon. . . .81, 100 Hastings V. Drew 194, 303, 506, 642, 656 Hatch V. American Union Tel. Co 578 V. Attrell 198 V. Dana 100, 304 Haverhill Ins. Co v. Newhall. . 36 PAGE. Hawes v. Contra Costa "Water Co 468, 470 V. Oakland 133, 137 Hawkins v. Mansfield G. Min . Co 96 Hawley v. Brumagim 149 v. Upton 77, 81, 86, 96 Haxtum v. Bishop 344, 424 Hay V. Cohoes Co 662 Haynes v. Brown 19, 143 Hays V. Crutcher 51 V. Ottawa O. & F. V. E. Co 60 Hayward Plankroad Co. v. Bry- an 206 Haywood v. Lincoln Lumber Co 167 V. Mayor, etc Ill Hazard v. Durant 465, 467, 469 Hazelhurst v. Savanah G. & N. A. E. Co 26 Hazeltine v. Belfast & M. L. E. Co 189 Head v. Providence Ins. Co. .28, 42 Heard v. Talbot. .385, 396, 399, 402, 404, 406 Heart v. State Bank 154 Heaston v. Cincinnati & Ft. W. E. Co 79, 143, 148 Heath v. Barmorep 380, 664 V. Erie E. Co... 133, 138 468 V. Missouri K. & T. E. Co 317 Heckmann v. Pinkney 556 Hedge v. Gibson 143 Hedges v. Paquett 500 Heltzell V. Chicago & A. E. Co. 473 Heffner v. Brownell 48, 50 Heiser, People ex rel., v. Asses- sors 252 Heman v. Britton 194 Hendee v. Pinkerton 33 Henderson & N. E. Co. v. Lea- veil 88 V. Lacon 91, 92, 94 v. New York C. E. E. Co 529 Ixxiv TABLE OF CASES. PAGE. Hennessey's Case 81 Exrs. Case 161 Ex parte 161 Henning v. United States Ins. Co 42 Henry v. Vermillion & A. K. Co. 19, 79, 90, 304, 347 Herries v. Wesley 658, 659 Herriek, People ex rel.,v. Smith, 5, 18 Herring v. New York L. E. & W. B. Co 326 Hersey v. Veazie 466, 469 Herzo v. San Francisco 124 Hess V. Werts 479 Hester v. Memphis & C. R. Co. 90 Hestonville M. & F. P. E. Co. V. Philadelphia 399, 414 Hetzel V. Tannehill Silver Min. Co 380 Hewlett V. New York N. S. E. Co 447 Hibernia Bank v. Lacombe 348 Hibernia Fire Engine Co. v. Harrison 107, 109 Hibernia Nat.Bank v. Lacombe. 493 Highland Turnpike Co. v. Mc- Kean 19, 78, 88 Hightower v. Thornton. 99, 100, 303, 304, 309 Hill V. Beach 479 V. Conklin 650 V. Mohawk & H. E. Co. . . 528 V. Newlchanick Co 191 V. Nisbet 276 V. Nye 669 V. Pine Elver Bank 20 V. Silvey, 102 V. Spencer 650, 651 Hiller v. Burlington & Missouri R. Co 496 Hillard V. Goold 26 Hills V. Bannister 48 Hindman v. Piper 398 Hoag V. Lament 582, 642 Hoagland v. Bell 83, 144 PAGE. Hoagland v. Cincinnati & F. W. R. Co..-. 88 Hoboken Building Assoc, v. Martin 302 Hodges V. City of Buffalo 662 V. New Eng. Screw. Co. 128, 132, 133, 138, 277, 465, 466, 469, 499 Hodson V. Copeland 406 Hoffman Steam Coal Co. v. Cum- berland Coal & Iron Co 98 V. Van Nostrand .... 137 V. Van Vostrand 664 Holbrook v. Bassett 578 V. Farquier & A. T. Co 149 V. Eeceiver.359, 364, 375 V. St. Paul Fire & Marine Ins. Co 479 Holcomb V. New Hope Bridge Co 34 Holland v. Heyman..316, 382, 384 HoUingshead v. Woodward 316, 384, 395, 637, 647, 656 Hollister Bank of Buffalo, Mat- ter of 290 Holmes, Ex parte 57 V. Board of Trade 40 v. Sherwood 100 V. Willard 483 Holstead v. Dodge 630 Holt V. Winfteld Bank 96 Holyoke Bank v. Goodman Paper Co 479 Home Insurance Co. v. Morse. 112 Home S. Ins. Co. v. Sherwood, 19 161 Hood V. New York & N. H. E. Co 22, 24, 30 Hooker v. Eagle Bank 40, 60 V. Eagle Bank of Eoch- ester 63 V. Vanderwater 281 Hoole V. Great Western E. Co. 190 Hooley v. Gieve 340 Hooper v. Tuokerman 348 V.Winston 423 TABLE OF CASES. Ixxv PAGE. Hoosack V. College of Physi- cians of N. Y.... 28 Hop &Malt Exchange &W. Co., ■Re, 91 Hopkins v. Mayor 104 V. Mehaffy 35 Hopper V. Sage 191, 192 Hoppin V. Buffum 156 Hopple V. Brown Twp 24 Horn V. People 104 Housatonic Bank v. Martin 59 Housenaan v. Girard Associa- tion 56 Houston & T. C. E. Co. v. Shir- ley 273 Hovey v. Magill 35 Howard's Case 81 Howe V. Deuel. . .305, 316, 419, 420 Howe Machine Co. v. Bobinson, 472, 480, 486 V.Walker 27 Howell V. Chicago & N. W. R. Co 189, 190, 494 Howland v. Edmonds 214 How V. Deuel 315 Hoyle V. Plattsburgh & M. E. Co 167 Hoyt V. Thompson, 28, 60, 62, 63, 107, 124, 137, 424, 429, 626, 628, 629 V. Quicksilver Min. Co. . . 32 Hubbell V. Drexel 149 Hudgins v. Kemp 98 V. State 395 Hudson City Sav. Inst., In re.. 568 Hughes V. Antietam Manuf. Co 88,91,96, 142 V. Bank of Somerset. 396 V. Vermont Copper Mining Co 188 Huguenot Nat. Bank v.Studwell, 316, 338, 373, 641, 664 Hume V. Commercial Bank. ... 81 V. Pittsburgh, Cin. & St. L. E. Co 495 Humphrey v. Peagues 273 Humphreys v. Mooney 478 PAGB. Hun V. Gary 130, 131 Hunt V. Gunn 96 V. Jackson 348 Hunter v. Hudson E. I. & M. Co 28 Huntington v. Attrill 169, 198 V. Nat. Sav. Bank of D. C 23 V. Palmer 468 Huntley v. Beecher 664 Hutchings v. New England Coal Mining Co 20 Hutchins v. Smith 78, 96 Huybe v. Cattle Co 178 Hyatt V. Allen 191, 192 V. Eoach 300, 301 Hyde v. Beardsley 351 V. Lynde 429, 430 Hypesv. Griffin 48, 49 Ilion Bank v. Carver 502, 626 Illinois Cent. E. Co. v. Bloom- Ington Ill Illinois G. E. Co. v. Cook 274 Illinois Linen Co. v. Hough. 113, 114 Illinois E. Co. v. Zimmer 19 Imboden v. Etowa &B. B. Min- ing Co 479, 483 Importers & Grocers' Exchange, In re 330 Importing and Exporting Co. v. Locke 395, 399, 412, 414 In re, see name of party. India Bagging Assoc, v. Koek. 281 Indianapolis v. Gas Co Ill Indiana & E. Turnpike Eoad Co. V. Phillips 276 Indianapolis C. & L. Co.v. Jones. 277 Inhabitants of Palymra v. Mor- ton 112 Inglehart v. Thousand I. H. Co. 626 Inglis V. Great Northern E. Co. 145 Instone v. Frankfort Bridge Co 142, 145 Insurance Co. v. McCain 61 Ixxvi TABLE OP CASES. PAGE. Intendant of Marion v. Chan- dler 110 International & G. E. Co. v. Breymond 274 International Life Assurance Society v. Commissioners of Taxes 73, 217 Iowa & M. K. Co. V. Perkins. . 77 Irvine v. Lumberman's Bank. . 396 Irving Nat. Bank v. Corbett.. 472 Isham v. Bennington 33 V. Buckingham 155, 160 J. Jackson, ex dem People v. Brown 34, 166 Jackson Marine Ins. Co. Matter of 402 V. Brown 578 V. Campbell 626 V. King 64 V. Luddling 133, 138 V. Newark Plankroad Co 189, 190 V. New York Central K. K. Co 115 V. Sharp 55 Jagger Iron Co. v. Walker 636 James v. Woodruff. ..156, 307, 380, 631 Jansen v. Otto Stietz N. Y. G. L. Co 578 Jarvis v. Manhattan Beach Co. 147 Jay Bridge Co. v. Woodman. . . Ill Jefts V. York 158 Jenkins, People ex rel. , v. Par- ker Vein Coal Co 172 Jermain v. Lake Shore & M. S. B. Co...f 73, 189, 192, 631 Jersey City Gas Light Co. v. Consumers Gas Co . . 400 V. Dwight 499 Jessup V. Carnegie 26 Jewett V. Talley B. Co 92 John Street, Matter of 528 John V. Farmers' & Mechanics' Bank 306, 395, 408, 483 PAGE„ Johnson v. Albany & S. E.Co. 143, 149 V. Bush... 28, 389, 637, 663 V. Crawfordsville F. K. & F. W. E. K.... 102 *v. Johnson 193 V. Martin 340, 341 V. Underbill.. 155, 634, 637, 658, 659- Johnstown v. Jones 45 Joint Stock Co. v. Brown 83 Jones V. Bank of Tennessee. . . 483 V. Barlow.. 124, 183, 641, 643, 645, 646- V. Cincinnati Type Foun- dry 483 V. Dana 483. V. Davis 73 V. Green 374- V. Guaranty Co 167, 666 V. Jarman 100 V. Johnson 467 V. Milton & E. T. Co. ..45, 81 V. Morris 36 V. Morrison 474 V. Planters' Bank 59 V. Eobinson 344 V. Sisson 20 V. Terre Haute & E. E. Co 190 V. Wiltberger 294 Judah V. American L. S. Ins. Co. 45 Judson V. Eeardon Ill V. Bossie Galena Co. 296 297, 359, 373, 379, 425, 454, 455 K. Kaiser v. Kellar 423 V. Lawrence. Savings Bank 479 Kanawha Coal Co. v. Kanawha &0. Coal Co 397 Kane v. Bloodgood 664 Kansas City Hotel v. Hunt. 85, 176 V. Sauer, 302, 309 Karnes v. Eochester & G. V. E. Co 188, 191 TABLE OP CASES. Ixxvif- PAGE. ■Katama Land Co. v. Jeregann 86, 97 Kean v. Johnson 31 Kearney v. Andrews 107, 111 Eeeler v. Brooklyn Elevated E. Co 504 V. Johnson 89 Kelley v. Mayor of Brooklyn . . 47 Kellogg V. Union Co . .395, 409, 412 Kelly V. Crapo 348 V. Trustees of Ala. & O.K. Co 31 V. Woman Pub. Co 473 Kelsey V. National Bank 26 V. North. Light Oil Co. 89 V. Pfaudler Process Fer- mentation Co. 178, 179, 658, 659 V. Sargent 629 Kempson v. Saunders 118 Kennebec & P. K. Co. v. Ken- dall.... 86, 106, 111, 144 V. Portland & K. E. Co. 468 V. Waters 91, 102 Kennebec Co. v. Augusta Ins. Co 27 Kennedy v. Chicago E. I. & P. E. Co 659 V. Cotton 472, 482 V. Strong 413 Kent V. Quicksilver Min. Co. 26, 62, 73, 104, 106, 112, 176 Keokuk N. L. Pac. Co. v. Davidson 336 Keppel's Admrs. v. Peters- burgh E. Co 157 Kemochan, Matter of 192 Kerr v. Dougherty 27 Keyser v. Hitz 479 Kidwelly Canal Co. v. Eaby. .79, 96 Kiersted v. Orange & A. E. Co. 36 Kincaid v. Dwindle .. 303, 307, 316, 339, 340, 344, 395, 414, 415, 436, 437 King V. Barnes 467 V. Coopers Co Ill V. Cutts 423 V. Duncan 635, 637 PAGE. King V. Pasmore 383 Kings Co. E. E. Co., Matter of, 537 Kirkland v. Kille 644, 645 V. Killer '. 641 Kirksey v. Florida & G. PI. E. Co 79, 142, 144 Kishaooquillas & C. T. P. E. Co. V. McConaby 90* Kittredge v. Kellogg 4IS V. Kellogg Bridge Co 381, 389 Klein v. Alton & S. E. Co. . ,79, 142 Knauer v. Globe M. S. Ins. Co. 641 Knickerbocker Fire Ins. Co., People ex rel., v. Coleman 225' Knight V. Old Nat. Bank 106. v. Wells 309' Knights V. Wiffen 158 Kniskem V. Lutheran Churches, etc 451, 500 Knott V. Southern L. Ins. Co. . 495 Knowles v. Duffy 613, 635, 637 Knowlton v. Ackley 302, 399i Knox v. Baldwin 185, 200, 201, 637, 645, 64S Koehler v. Black Elver Falls Iron Co 167 Kortright v. Buffalo Commer- cial Bank 63 Kraft V. Freeman Printing & Pub. Co 62& Krauser v. Euckle 650- L. Ladd V. Cartwright 301 Lafayette B. & M. E. Co. v. Oheeney 11$ Laflin & E. Powder Co. v. Sin- sheimer 382, 384 Lafond v. Deems 112. LaGrange & M. P. E. Co. v. Mays 90, 102 V. Eainey..397, 399, 413- Laing v. Burley 160/ Lake Ontario A. & N. Y. E. Co. v. Mason.... 19, 77, 78, 86, 142 Ixxviii TABLE OF CASES. FAGE. .Lake Ontario Nat. Bank v. Onondaga County Bank. . . 306, 316, 320, 414 "Lake Ontario Shore K. Co. v. Curtiss 77, 87, 95 ; Lake Sup. Iron Co. v. Drexel. . 624, 625, 634, 647, 648, 669, 670 Lander's Case 63 . Landers v. Frank Steet Metho- dist Church 60 Lane v. Brainerd 88 V. Harris 308 V. Nickerson 99 Langsdale v. Bonton 105, 106 . Larking, Ex parte 55 iLatham v. Houston Flour Mills Co 50 Lathrop v. Commercial Bank. . 26 V. Kneeland 79, 630 V. Stedman 398 V. Union Pao. K. Co . . 494 Latimer v. Union Pac. B. Co . . 495 Lauman v. Lebanon Val. B.. Co. 274, 277, 310 IJaw, People ex rel., v. Commis- sioners 252 Lawrence v. Greenwich Ins. Co. 336 y. Tucker 55 Lea V. American Atl. & Pacific Canal Co 316, 380 Leach v. Fohes 159 Leavitt v. Fisher 154, 630 V. Palmer 429 Xee V. La Compagnie Univer- sale 471 V. Pittsburgh Coal & Min- ing Co.... 40, 54, 63, 124 Leggett V. Bank of Sing Sing. . 154 V. Nray Jersey 33 V. New Jersey Manuf. & Banking Co 33, 104, 166 Lehigh Bridge Co. v. Lehigh Coal V. Nav. Co. 123, 388,396, 407 Lehman v. Warner 25 Leitch V. Wells 155 Leland v. Hayden 190, 193 V. Marsh_. 308 PAGE. Leroy v. Globe Ins. Co 439 Leslie v. Knickerbocker Life Ins. Co 669 V. Lorillard....468, 475, 492 Levisee v. Shreveport City K. Co 114 Lewey's Island E. Co. v. Bolton. 144 Lewis V. Kider 635 V. St. Albans I &S. Works. 127, 132 Lexington Life, etc. Ins. Co v. Page 194 Lexington & O. B. Co.v.Bridges. 309 Libby v. Bosenkrans..339, 344, 350, 351, 364, 365, 424 Liohtenberg V. Hertdf elder 374 Liebke v. Knapp 87, 170 Life & Fire Ins. Co. v. Mechanic Fire Ins. Co. . .23, 124, 578, 626 Lighte V. Everett Fire Ins. Co. 482 Lighthill Mfg. Co., Matter of... 618 Lincoln, People exrel., v. Asses- sors of Town of Barton. . . 214 Lindell v. Benton 309 Lindsleyv. Simonils. . 308, 637, 638 Linger, Ex parte 91 Linton v. Sharpsburg Bridge Co. 22 Lippitt V. American Wood Pa- per Co 155 Litchfield v. White 130 Litchfield Bank v. Church, 89, 91, 94, 102 Livesey v. Omaha Hotel Co. . . 88 Livingston v. Albany 110 Livingston v. Bank of N. Y 424 V. Lynch 31, 32 Loan Association v. Stonemetz, 114 Locke V. Alexander 34, 36 Lockhart v. Van Alstyne 188 Lockwood V. Coley 52, 53 v. Mechanics' Nat. Bank 106 V. Merchants' Nat. Bank. 154 Loder v. New York V. & O. B. Co .338, 460 Logan V. Vernon, G. & E. B. Co. 395 TABLE OF CASES. Ixxix PAQE. liohman v. New York & E. R. Oo 149 Lombardo v. Case 191 London & B. K. Co. v. Fair- clough 85 London G. T E. Co. v. Free- man 85 London Tobacco Pipe Makers' Co. V. Woodroffe 109 Long V. Coburn 38 Long Island R. Co. In re 107 Long Island R. R. Co., Matter of 620 Long Island R. Co. v. Marquard. 40, 63 Longdale Iron Co. v. Pomeroy Co 82 Lorillard v. Clyde 87, 170 Loring v. Salisbury Mills 160 V. United States VuL Gutta Percha B. & P. Co 575, 577 Lord V. Brooks 190, 193 V. Tonkers F. G. Co. 666, 667 Losee v. BuUard 637, 645 Louisiana State Bank v. Senecal. 58 Louisville AN. R. Co.v. Palmes. 272 Louisville Gas Co. v. Citizens' Gas. Co 278 Love v. Sierra Nevada L. W. & M. Co 36 Lovett V. German Ref. Ch. 621, 622 Lowne v. American F. Ins. Co. 439 Lowry v. Commercial & F. Bank 157 v. Inman 307 Luard's Case 82 Lucas V Bank of Darien 59 Luring v. Atlantic Ins. Co. 189, 190, 191, 466 Lumbard v. Aldrich 26 V. Stearns 405 Lumsden's Case 84 Lung Chung v. North Pac. R. Co 496 Luse V. Isthmus Transit R. Co. 28 Lute Coeulx v. Buffalo 23 Lutz V. Linthicum 35, 36 M. PAGE. M. C. Co. V. Abbey 581 MacDougall v. Gardiner 133 Macedon & Bristol Plankroad Co. V. Snediker 87 Machley's Case 79 Mackall V. Chesapeake & O.Canal Co 383, 397 Macon & A. R. Co. v. Vason. . . 86. Madison Ave Baptist Church v. Baptist Church in Oliver Street 546, 547' Magee v. Badger 142 Magill V. Hinsdale 35, 37 V. Kauffman 39, 54 Mague Steamship Co. v. McGre- gor 281 Maguire's Case ; . 84 V. Smock 281 Magwood V. R. R. Bank 157 Mahan v. Wood 90 Mahoney v. People 466 Main v. Mills 188 Maine Cent. R. Co.v.Maine, 272, 278 Mallory v. Hanaur Oil Works . 275, 280 Maltby v. Northwestern Va. R. Co, 83 Mangles v. Grand Collier Dock Co .■ 90, 94 Manhattan Co. v. Lydig 106 Manhattan Fire Ins. Co., People ex rel. v. Commissioners, 219, 224 Mann V. Cook 89 V. Cooke 61, 94, 102, 145 V. Currie, 142, 144, 153, 352, 353, 431, 442, 559, 627, 631 V. Pentz 303, 342, 347, 352 353, 354, 372,373, 381,421, 441, 442, 443, 499, 663 v.People ex rel. v. Mott 532 Manning v. Quicksilver Mining Co 191, 192 , Ixxx TABLE OF CASES. PAGE. Mansfield C. & L. M. E. Co. v. Drinker 276 Tilanson v. Grand Lodge 112 Manufacturers' Bank of Troy v. Troy 224 Manville v. Eoever 295, 298 March v. Eastern E. Co. . 131, 133, 138, 189, 466, 469 Marcy v. Clark 308 Marietts & C. E. Co v. Elliott. 274 Marine Bank v. Ogden 274 Marr v. Bank of "West Ten- nessee 99 Marseilles, In re 56 Marsh, Matter of 520 V. Burroughs 100 V. Falker 64 Mart, In re 315 Martin v. Eewell 479 V. Flowers 35 V. Nashville Building Association 104, 105 V. Niagara Falls Paper Co.50, 62, 110, 621, 629, 666 V. Pensaoola & G. E. Co 91, 102, 274 V. Zellerhach 32 Marzetti v. Williams 143 .Mason v. Harris 133, 138 V. New York SilkManuf. Co 657 Massachusetts Iron Co. v. Hooper 154 Massey v. Citizens' Building & Sav. Assoc 483 Masters V. Electric Life Ins. Co. 381, 385, 416, 417 Mathez v. Neidig 296, 298, 300, 634 636 Matthewman's, Mrs., Case .... 82 Matthews v. Albert 308 V. Skinker 23 Maunsell v. Midland Gt. W. E. Co 83 Manx Ferry & Gravel Eoad Co. V. Branegan 113, 114 May V. State Bank 310 PAGE" May V. Western Union Tel. Co. . . 159 Mayor, etc., of New York, Mat- ter of 535 Mayor v. Beasly Ill Mayor, etc., v. Hussey Ill Mayor of 'Baltimore v. Pitts- burgh & C. E. Co 398 Mayor, etc., of Knoxvillev.O. E. Co 274 McAuley v. Columbus C. & I. C. E. Co 275 McBroom v. Corporation of Le- banon 484 McClaren v. Franciscus 308 MoClave v. Thompson, 185, 200, 201 656 McClellan v. Scott 92, 94 McClelland v. Whiteley 78, 81 McClinch v. Sturgis 478 McConahy v. Centre & K. Turn- pike Co 396 McCotter v. Jay 350 McCray v. Junction E. Co. 274, 276 McCready v. Eumsey 153, 156 McCuUoch V. Norwood 310, 380 V. Moss 47, 662, 664 V. Pittsburg & C E. Co 81, 109 McCurdy v. Myers 31 McDermot v. Board of Police. 629 McDonald v. Eoss-Lewin 353 McDonald, People ex rel. v. U. S. Mer. Eep. Co 659 McDonough v. Templeman. . . 33, 35 McDougall V. Gardiner 138 McDowell V. Bank of W. & B . . 154 McEwen v. Montgomery Ins. Co 55 McGraw v. Cornell University.. 662 McHarg v. Eastman 643 MoHose V. Wheeler 81, 479 Mclntyre v. Preston 49 V. Strong 208, 295, 296 McKee v. Metropolitan Ins. Co. 488 M'Kinoh, People ex rel.v.Bristol & E. Tump. Co 406 McLean v. Eastman 194 TABLE OP CASES. Ixxxi PAGE. liIcLean v. Manhattan Medicine Co 231 McMahan v. Morrison. 271, 272, 306 MoMahon, In Matter of 214 MoMaster v. Davidson 635, 637 McMillan v. Maysville&L. E. Co 87 MoMurtry v. Tuttle 473 McNaughton v. Osgood 629 McNeil V. Tenth Nat. Bank. . . 155 McPherson, Matter of 237 McQueen v.Mlddletown Manuf. Co 473, 494, 495 McRae v. Kussell 141 McSpedon v. Mayor 28 McVickar v. Eoss 274 Matter of, see Name Mead v. Keeler 556, 557, 560 V. New York H. & N. E. Co 275, 276 Meads v. Walker 388 Means v. Swormstedt. . . .38, 48, 51 Mechanics' Bk. v. Merchants' Bank 154 V. Meriden Agency 83 V. Merchants' Bank 106 V. New York & N. H. E. Co 153, 156 V. Schaumburg, 55, 56, 57 Mechanics' Bank of Alexander V. Seton 58, 159 Mechanics' Bank Assoc, v. Spring Valley Shot & Lead Co 45 Mechanics' Bank Assoc, v. Ma- riposa Co 155 Mechanics' & F. Bank v. Smith 106 Mechanics' & T. Bank of Jersey City V. Dakin 374 Mechanics' Building Associa- tion V. Stevens 395 Mechanics' F. & M. Co. v. Hall, 86, 97 Mechanics' Society, In re 409 PAOE, Medbury v. Eochester Frear Stone Co 381, 416, 418 Medillv. Collier 478 Meeker v. Chicago Cast Seelt Co 382 Meier v. Kansas Pacific E. Co . 423 Meikels v. German Savings Fund Soc 483 Melendy V. Keen 92 Mellege v. Boston Iron Co. . . . 124 Melvin v. Lamar Ins. Co.. 89, 94, 95 Memphis v. Dean 133, 138 Memphis G. Gas Co v. William- son 133, 138 Menier v. Hooper's Tel. Works 133, 138 Mercantile Bank v. New York 223 Merchants' Bank v. Detroit Knitting & Corset Works . . 41 V. Shouse 106 V. State Bank. . .40, 61, 113 Merchants' Bank of Macon v. Central Bank of Georgia . . 53 Merchants' Bank of N. H. v. Bliss, 294, 641, 642, 645, 646, 647, 6G4 Merchants' & Manuf. Bank v. Stone 478 Merchants' National Bank v. State National Bank 40 Merchants' Manuf. Co. v. Grand Trunk E. Co 494 Mercier v. Canonge 59 Meriden Britannia Co. v. Zing- sen 650 Meriden Tool Co. v. Morgan. . . 74 Merriam v. Wolcott 158 Mernck v. Brainard 410 V. VanSantvoord 26 Merrill, Matter of 439 V. Consumers' Coal Co. 43 V. Suffolk Bank. . . .309, 310 V. Walker 83, 144 Merrimac M. Co. v. Levy 86 Merritt v. Millard 25 Merriweather v. Bank of Ham- burg 473 6 Ixxxii TABLE OF CASES. PAQE' Merryman v. Carroll Brick Co. 337, 338 Metropolitan Concert Co. v. Abbey 38, 39 Mexican Gulf E. Co. v. Via- vaut 77, 84, 86 Meyer v. Blair 628 Meyer v. Johnson ... 271 Miami Exporting Co. v. Gano.. 309 Miokles v. Rochester City Banlc, 379, 381, 401, 402, 415, 416, 417, 501 Middlebrooks v. Springfield Ins. Co 495 Middlesex County Bank v. HirschBros' Veneer Manuf. Co. 52 Middlesex R. Co. v. Boston & C. B. Co 31 Middletown, Town of, v. Eond- out&O. E. Co 457 Miltord & C. Turnpike Co. v. Brush 409 Millen v. Guerrard 193 Miller v. Penton 135 V. Hanover Junction & S. E. Go 90, 102 V. Illinois Cent. K. Co. 56, 57 V. White... 636, 641, 642, 643 V. Wildcat G. R. Co. 86, 89, 91 Millers Ad'mr. v. Newberg Orrel Coal Co 475, 480 Miller's Dale Co., In re 176 Mills V. Stewart 194 Milwaukee & N. J. R. Co. v. Field 88 Miners' Bank of Dubuque v. United States 398, 399 Miners' Ditch ^o. v. Zellerbach 30, 31 Minneapolis Harvester Works V. Libby 143 Minnesota Gen. E. Co. v. Mel- vin 384, 396 Minor v. Mechanics' Bank of Alexandria 90, 94, 113 PAGE- Mississippi & T. E. Co. v. Har- ris 81 Mississippi Bank v. Wren 309 Mississippi O. & R. E. Co. v. Cross 89, 91, 102 Missouri E. R. Co. v. Richards, 115 Mitchell's Case 84 Mitchell V. ; Beckman 86, 143 V. Deeds 276, 483 V. Lycoming Mut. Ins. Co 113 V. Rome R. Co.... 19, 88 Mobile & 0. R. Co. v. Franks. . . 23 V. State .... 390' Mobile Mutual Ins. Co. v. Cul- lom 154; Mohawk & H. E. E. Co., Mat- ter of , 620 V. Clute 224, 226. Monopolies, Case of 281 Montgomery v. Montgomery & W. PI. Eoad Co 23 Montgomery E. Co. v. Hurst... 484- Montgomery S. R. Co. v. Mat- thews 91 Monument Nat. Bank v. Globe Works 47 Moore v. Bank of Commerce, 108, 110, 156. Moore v. Mausert 568' V. City of New York 527 V. Schopperty 383, 397 V. Taylor 434 Moran v. Lydecker 395, 458; Morey v. Ford 637, 641 Morgan v. Bank of North Amer- ica 16a v. New York & A. R. Co. 309, 372, 373, 376, 439 V. Potter 341 v. Skiddy 134. Morgan Co. v. Thomas 307 Morley v. Thayer, 123, 302, 303, 399' Morrell v. Long Island E. Co., 41, 62 Mon-ill V. C. T. Segar M. Co. . . 629 Morris & E. R. Co. v. Ayres. .. 107 TABLE OF CASES. Ixxxiii FAGB Morris Canal & Banking Co. v. Nathan 87 Morris Kun. Coal Co. v. Barclay Coal Co 275, 281 Morrison v. Bowman 35, 36 V. Gold Mountain G. M. Co 86 V. Menhaden Co.. 375, 434 Morrow v. Nashville Iron & Steel Co 171 Morse v. Switz 62 Morton v. Metropolitan Life Ins. Co 578 Morton Gravel Koad Co. v. Wysong 105 Moseby v. Burrow. 99, 303, 316, 383, 384, 397 Moses V. Oooee Bank 81 Mosley v. Alston 468, 469 Moss's Appeal 190, 193 Moss V. Averill 47 V. McCuUoch 635 V. MoCuUough 560 V. Oakley 45, 47, 560 V. EossieLeadMin.Co.47, 662 Mott V. Hioks 47, 48, 52 V. United States T. Co. . . 64 Moulin V. Trenton Ins. Co. 494, 496 Mt. Holly L. & M. T. Co. v. Per- relle 155 Mt. Sterling C. Co. v. Little . 86, 95 Movius V. Lee 127, 132 Mowery v. Indianapolis & C. E. Co 274, 275, 277 Moyle V. Lander 127 Mudgett V. Horrell 83,144 Mumf ord v. American L. Ins.Co. 26 V. Hawkins 40 Mutnma V.Potomac Co.381, 407, 475 Mundy v. Excise Commr's 567 Munson v. Syracuse G. & C. K. Co 629 Munster's Case 92 Murad v. Thomas 638 Murphy, Ex parte 620 Murphy v. City of Louisville . . 42 V. Farmers' Bank 411 PAGE. Murray, Matter of 44ft Murray v. Glasse 193 V. Vanderbilt 491 Musgrave v. Morrison 81 Mussina v. Goldwaithe 468 Mutual Benefit L. Ins. Co. v. Davis 27, 45, 489 Mutual Building Fund v. Bos- seiux 127, 132 Mutual Fire Ins. Co. People ex rel. V. Commissioners of Taxes 219, 223 Mutual Ins. Co. of Buffalo v. Supervisors of Erie Co. . . 215 Mutual Life Ins. Co. v. Commis- sioners of Taxes 212 V. Newton 188 Mutual U. Tel. Co. v. People ex rel. V. Commissioners of Taxes 219, 220, 250 Myers v. Dorr 495 Myrick v. Brawley 399 N. Narragansett Bank v. Atlantic Silk Co 47 Nassau Bank v. Jones 83 Nassua Gas Light Co. v. City of Brooklyn 240, 241, 577 Nathan V. Whitlock. ..347, 429, 431 National Bank v. Fenton 637 V. Matthews... 167 V. Norton.... 57, 59 V. Orcutt 483 V. Watsontown Bank 148, 149 National Bank of Commerce v. Huntingdon , 495 National Cond. Milk Co. v. Bran- burgh 495 National Docks E. Co. v. Cen- tral K. Co 385 National Exchange Co. v. Drew. 91 National Freight & Lighterage Co., People ex rel., v. Com- missioners of Taxes and Assessments 214 Ixxxiv TABLE OP CASES. PAGE. National Pahquioque Bank v. First Nat. Banli of Bethel 303, 316, 395, 629 liTational Park Bank v. German A. W. Co 629 National Security Bank v. Cush- man 55, 58 National Trust Co. v. Miller. . . 194 V. Murphey 26 National Tube Works Co. v. Gil- fillan 624, 648, 669 Ifat Union Bank v. Landon 478 Neall V. Hill 305 Negley v. Counting B. Co 629 Nelson v. Drake 624, 648, 669 V. Eaton 45 Ness V. Angas 82 Neuse Iliver Nav. Co. v. Com- missioners of Newbern. .. . 141 Nevitt V. Bank of Port Gibson 399, 409 "New Albany & S. B.Co. v. Fields 89, 92 Y. MoCormick.87, 96, 143, 148 V. Slaughter 89 New Bedford & B. Turnpike Co. V. Adams 97 Newberg Petroleum Co. v.Weare. 27 Newbery v. Garland 626 New Brunswick & C. B. Co. v. Conybeare 94 Newby v. Colt's Pat. F. A. Co. 473, 495 Newby V. Oregon Cent. E. Co. 465 Newcomb, People ex rel., v. Mo Call 434 Newell V. Great Western E. Co. 495 New England Commercial Bank V. Newport Steam Factory, • 290, 308 New England Iron Co. V. Gilbert Elevated E. Co 317, 578 NewFoundland E. Co. v. Schack. 384 New Hampshire 0. E. Co. v. Johnston 19, 86 INevf Haven v. City Bank 73 PAGE. New Haven & D. E. Co. v. Chap- man 97 New Haven Horse Nail Co. v. Linden Spring Co 20 New Hope, N. Del. Bridge Co. v. Phoenix Bank 40, 55 New Hope Delaware Bridge Co. V. Poughkeepsie Silk Co . . . 490 New Jersey S. B. Co. v. Long Branch Commissioners. 383, 396, 413 New London v. Brainard 23 New Milford Nat. Bank v. New Milford 55 New Orleans v. Philippi 105 V. Savings Bank. . .111 New Orleans J. & G. & E. Co. v. Harris 274, 276 New Orleans 0. & G. W.E. Co. v. Williams 90 New Orleans Steamship Co. v. Dry Dock Co 83 New W. S. & B.E. E.Co., Matter of 526 New York & Erie E. Co. v. Corey 531, 532, 537 New York & H. E. Co., In re, v. Kip 518, 520 V. New York 39 V. Schuyler 63 New York & L. W. E. Co. Mat- ter of 537 New York & L. E. Co. Matter of V. Arnot 528 New York & N. H. E. Co. v. Schuyler 155, 156, 465, 467 New York & S. Canal Co. v. Fulton Bank 274, 275 New York Cab Co. v. Chambers St. E. Co 664 New York Cable Co., Matter of. 520, 521 New York Car Oil Co. v. Eich- mond 634 New York Cent. E. Co. v. Mar- vin... 531 New York, City of, v. Starin, 458,459 TABLE OF CASES. IXXXT PAGE. "New York Elevated E. Co., Matter of 382, 395, 409, 413,539 New York Exchange Co. v. De- Wolf 92, 102 New York Firemen Ins. Co. v. Ely 23 V. Sturges 23, 46, 662 New York Floating Derrick Co. V. New Jersey Oil Co. . . .27, 489 New York H. K. Co. Matter of 537 New York H. & N. E. Co. v. Hunt 88 New York L. Ins. Co. v. Univer- sal L. Ins. Co 488 New York L. Ins. & T. Co. v. Beebe 663 New York L. & "W. E. K. Co. Matter of. 486,523, 428, 529, 531, 532, 533 New York Marbled Iron Works V. Smith 306, 307, 310, 316 414 N'ew York Protective Assoc, v. McGrath 108 New York P. & B. R. Co. v. Dixon 44 New York Syracuse B. & N. Y. Co., Ex parte 536 New York W. S. & B. K. Co. Mat- ter of. 521, 523, 529, 530, 531,537 New York W. S. & B. E. Co. v. Townsend 526 V. Yates 532 Niagara Bank v. Johnson . . 302, 303 Niagara Falls & W. E. Co. In re 538 Niagara Ins. Co., In re 317 Nicholas v. Oliver 49 Nicoll V. New York & E. E. Co. 578 625, 661 Nimons v. Tappan 99, 123, 183, 184, 197, 316, 390, 415, 641, 647 Nippenose Manuf . Co. v. Stadon 93 Noble V. Callender 90 V. Halliday 345, 432 Nobleboro v. Clark 49 Nockels V. Crosby 118 Norris v. Ci-ocker 646 PAGE. Norris v. DeWolf 641 V. Stape 104 V. Wrenschall 290 North V. State 380 North Carolina E. Co. v. Loach 90, 93 Northeastern E. Co. v. Payne 23 V. Eodriques 81, 93 Northern E. Co. v. Miller.. 19, 86, 142, 145, 627, 628, 664 North Eiver Bank v. Ay mar. 55, 58 North Eiver Ins. Co. v. Law- rence 23 North Shore Staten I. F. Co., In re 224 Northwestern Distilling Co. v. Brant 37 Northwestern Fertilizing Co. v. Hyde Park 24 Norwich Gas Light Co. v. Nor- wich City Gas Co 281 Norwich Nav. Co. v. Theobold 88 Noyes v. Spaulding 20 Nugent V. Putnam County. . . . 275 Nugent V. Supervisors 277 Nulton V. Clayton 42, 79, 86 Nutt V. Humphrey 54 Nutter V. Lexington &W. C. E. Co 176 Nutting V. Thomson 157 o. Oakes v. Turquand 84, 91 , 94 Oakland Bank v.- Wilcox 133 Oakland E. Co. v. Oakland B. &F. V. E. Co 27, 413 Obitt V. Hughes 641 O'Brien x- O'Connell 504 Occum Co. V. Sprague Mfg. Co. 23 Oddfellows' Hall Co. v. Glazier 86 Odle, People exrel., v. Kniskern 521 Oesterreicherv. Sporting Times Pub. Co 480 Offut v. Ayres 38 Ogilvie V. Knox Ins. Co 91, 99 Ogdensburg C. & E. E. Co. v. WoUey 19, 141 Ixxxvi TABLE OF CASES. PAGE Ogdensburg R. & C. E. Co. v. Frost 19,83, 86 Ohio & M. R. Co. V. Davis 342 V. McCarthy.. 26 V. People 271 V. Wheeler. . . 494 Ohio I. & I. K. Co. V. Cramer. . 141 Ohio Life Ins. & Trust Co. v. Merchants' Ins. & Trust Co 303 Olcott V. Tioga B. Co. . .52, 54, 63, 123, 124, 137, 210, 577 Olyphant v. Atwood 348 Oneida Bank v. Ontario Bank. 650 Open Board of Broker, In re, 324, 329 Ordway v. Baltimore Cent. Nat. Bank 303 Oregon Steam Nav. Co. v. Win- sor 281 Ormsby v. Vermont Copper Min.Co 384,386, 393, 395, 415, 444 Orphan Asylum v. McCartee . . 336 Orr V. Bigelow 155 Osbum V. Heyer 423 Osborne & C. Co. v. Croome . . . 644 Osceola Tribe v. Schmidt 112 Osgood Y. DeGroot 345, 359 V. Laytin 188, 347, 424, 431, 432 V. Maguire....335, 342, 348, 381 Oswego Canal Co., People ex rel, V. City of Oswego. 213, 227 Oswego Starch Factory v. Dol- loway.. .212, 214, 215, 223, 224, 226, 634, 641 Otsego Bank, People ex rel. v. SupervisUrs 224 Ottaquechee Woollen Co. v. Newton 408 Outwater v. Berry Ill V. People ex rel. v. Green 295 Overmyer v. Williams 23 Oviatt V. Hughes 643 PAGE. Owen V. Smith 307, 664 Oxford Iron Co. v. Spradley ... 47 Pacific Mail S. S. Co., People ex rel. v. Commissioners of Taxes... 217, 218, 219, 224, ♦ 226, 229 Pacific E. Co. V. Hughes.. .19, 32 V. Seely 23 Paddock v. Fletcher 134 Paducah & M. E. Co. v. Parks 143, 148- Page V. Fall Elver W. & P. E. Co 41 Paine v. Lake Erie & L. E. Co. 272, 277- v. Stewart 290 PainesviUe & H. E. Co. v. King 190- Palmer v. Clark 335, 345. V. Lawrence 78, 582. Palmetto Lodge v. Hubbell. . . 110 Panama E. Co., People ex rel., v. Commissioners of Taxes 224 Pardo v. Osgood 345, 359 Parish v. Cole 23 V. Parish 159 V. Wheeler. ..25, 26, 63, 64 of Bellport v. Tooker 383^ Park V. Grant Locomotive Works 41, 189' Park Bank v. Tilton 486 v. Wood 228- Parker v. Northern Cent. M. E. Co 79, 85- V. Thomas 92 Parrottv. Colby.. 635, 636, 637, 657 Parson's Case 84 Parsons Manuf. Co., People ex rel. V. Moors 218 Partridge v. Badger. . . 30, 45, 621 Pasohall v. Whitsitt . . .309, 310, 393, 406 Passyunk Building Assoc. Ap- peal 467 Patrick v. Euffners 410 Patterson v. Lynde 100, 301 v. Eobinson 635, 648, 655, 6S& TABLE OF CASES Ixx XVU PAGE. Paul V. Virginia 18 Paulding v. Ohrone Steel Co. 666, 667 Paulsen v. Van Steenburgli 506 Paxson V. Sweet "..... 110 Payne v. BuUard 303, 304 V. Elliot 149 Payson v. Withers 90 Peabody V. Flint. 133, 137, 466, 469 People ex rel. v. Chi- cago Gas Trust Co. . 281 Pearoe v. Madison & I. K. Co. 83, 274, 276, 277, 395 Pearce v. Madison & L. E. Co.. 275 V. Olney 388, 395 Peck V. Derry 134 Peckham v. North Parish . .494, 495 V. Van Wagenen 631 Pe4k V. Chicago &N. "W. B. Co. 272 Peirce v. Burroughs 193 V. Somersworth' 396 Pell's Case. 87, 170 Pellatt's Case 141 P.^ndergast v. Bank of Stockton, 106 Peninsular K. Co. v. Duncan, 79, 85 V. Tharp 276, 308, 560 Ponniraan v. Briggs 306 Pennsylvania D. & M. Nav. Co. V. Daudridge 23 Penn ;y:\ in:a R. Co. v. Canal Couimissioners 23 Penobscot Boom Corp. v. Lam- son 305, 306, 387, 396, 399, 406, 414 Penobscot E. Co. v. Dumer. . . 79 Penobscot & K. R. Co. v. Bart- lett 20, 84 V. Dunn 88 Pentz T. Hawley . .352, 353, 429, 431 People V. Albany & S. E. Co. 419, 420 V. Albany & Vt. E. Co., 27, 379, 418, 420, 448 V. Albany Ins. Co 236 V. Assessors 191, 217 V. Atlantic Mut. Life Ins. Co 421 PAGE. People V. Ballard 124, 125 V. Bank of Hudson, 24, 389, 400, 401, 404, 406, 408, 410, 411, 413, 448 V. Bank of Niagara 406, 410, 448 V. Bank of Washington 448 V. Batchelor 45 V. Beach.. 577, 578, 614, 629 V. Board of Assessors, 212, 230 V. Board of Fire Under- writers 108 V. Board of Supervisors of Niagara County, 215 V. Boston H. T. & W. E. Co 445, 447 V. Bowen 663 V. Bristol & E. Tump. Co.... 24, 387, 393, 394, 400, 408, 409, 410 V. Brooklyn F. & C. I. E. Co 434 V. Bruff 320, 444, 456, 504, 506, 620 V. Cassity 223 V. Chambers 88 V. Cohooton Stone Eoad Co 449 v. Commissioners 73, 237 V. Commissioners of Taxes 214, 215, 223, 226 V. Commissioners of Taxes of N.Y.. 226, 237 V. Crockett 106, 154 V. Crossley 107, 206 V. Cummlngs 620 V. D'Argencour 484 V. Davenport 668 V. Davis 484, 485 V. Dean 305 V. Detroit Fire Dep't. . . Ill V. Deyoe 28 V. Dispensary & Hospi- tal Soc 452 Ixxxviii TABLE OF CASES. PAGE. People V. Dixon 249 V. Dolan 216 V. Equitable Gas Light Co 484 V. Equitable Trust Co . . 235, 236, 237 V. Erie R. Co . . 316, 338, 426 V. Excelsior Gas Light Co. ..377, 378, 382, 390, 403 V. Farris 210 , V. Tire Department of Detroit 106 V. Fishkill&B. Plank E. Co... 391, 392, 404, 406, 409 V. Globe Mut. L. Ins. Co.... 428, 440,456, 460 V. Gold & Stock Tel. Co. 226, 235, 247 V. Green 183 V. Horn Silver Mining Co... 213, 235, 236, 239, 244, 247, 248, 616 V. Hillsdale & C. Turnp. Co 24, 394, 404, 406 V. Hudson Bank 384 Y. Hydrostatic Paper Co 436 V. Jackson & M. Plank E. Co 406 V. Kankakee Eiver Im- provement Co ... . 392, 408, 418 V. Kingston & M. Turn- pike Co ... 384, 392, 393, 400, 409, 448 V. Kip Ill V. Knickerbocker Ice Co. • 240, 241, 578, 591, 616 V. Louisville & N. E. Co. 25, 278 V. Lowe 447, 507 V. Lucas 568 V. Manhattan Co. ... 34, 39, 379, 384, 395, 400, 406, 407, 409, 410, 662, 663 PAGE^ People V. McCall. 434 v. Mutual Benefit Asso- ciation 357, 434 V. Mutual Trust Co 663 v; National Fire Ins. Co. 235 , V. National Trust Co . . 303, 310, 345, 357 V. New Tork Floating Dry Dock Co 235 V. Niagara County 226 V. North Chicago E. Co., 411, 412 V. Northern E. Co.. 385, 391, 404, 623 V. North Eiver Sugar Ee- finingCo. 279, 280, 617 V. Oakland Co.Bank, 409, 412 V. O'Brien 309, 318, 390 V. Ottawa Hydraulic Co. 409 V. Parker Vein Coal Co. . 420 V. Phelps 180- V. Phoenix Bank 395, 409 V. Plymouth Plank Eoad Co 405 V. Eefining Co 282 V. Eemington 650 V. Eennselaer & S. E. Co 411, 413 V. Eunkel 388, 400 V. Sailors' Snug Harbor 157 V. Schwartz 485 V. Security Lite Ins. & Annuity Co... 339, 344, 357 V. Seneca Lake Grape & Wine Co. 321, 327, 412, 446- V. Society for the propa- gation of the Gos- pel, The 397 V. Stockton & v. E. Co. 19, 85, 141 V. Supervisors 249' V. Supervisors of Mont- gomery Co 567 V. Supervisors of Nia- gara County 21T TABLE OF CASES. Ixxxix PAGE. People V. Throop 659 V. Tibbits 24 V. Tobacco Manufg. Co. ... 449 V. Troy House Co. 142, 403, 663 V. Trustees of Geneva College 24 V. Twaddell,107,206, 302, 669 V. Tweed 641 V. Utioa Ins. Co. 18, 23, 24, 28, 383, 405 v. "Washington & W. Bk. 401, 406, 407, 410 V. Waterford & S. Turn- pike Co 409 v. Williamsburgh Turnp. Koad Bridge Co. 358, 392, 406, 448 People, ex dem Jackson, v. Brown 34, 166 People ex rel v. Assessors of Town of Herkimer. 252 V. Barker. .214, 217 219, 220 223, 224, 230, 231, 232 V. Board of Assessors of the City of Brook- lyn 213 V. Board of Supervisors. 214 V. Cassity 212, 214, 219 V. Cheetham 219, 249 V. Citizens' Gas-light Co. V. Board of As- sessors of Brook- lyn 224 V. Coleman... 215, 216, 250 V. Commissioners of Assessment and Taxes , 214 V. Commissioners of Taxes,215, 223, 236, 254 V. Commissioners, etc., of Taxes and As- sessment 220, 226 V. Conklin 420 V. Davenport 254 V. Dunkirk 252 PAOE. People V. Fire Association of Phila 236 V. Gold & Stock Tel Co. 218 V. Hupt 250, 257 V. Keator 255, 256 V. Low 254 V. Pitman. 220, 221, 253, 254 V. Pond 251, 253 V. Shields 218, 226 V. Smith.. 249, 259, 253, 254 257 American Linen Thread Co. V. Assessors of Mechanicville 225 American L. T. Co. v. Howland 224 Attorney General v. N. America L. Ins.Co. 453^ V. Security L.Ins.Co. 539, 455, 456; Bank of Commerce v. Commissioners of Taxes 224 Bank of Commonwealth v. Commissioners of Taxes 224 Bishop V. Kingston & M. Turnpike Co. . .386, 391 Broadway & S. Ave E. Co. V. Commission- ers of Taxes 226 Buffalo Mutual Gas Light Co. V. Steele 220 Butchers', etc, Co. v. As- ten 224, 225 Oagger v. Dolan 231 Church of Holy Com- munion V. Assess- ors of Greenburgh. 253 Citizens' Gas Light Co. of Brooklyn v. As- sessors of City of Brooklyn.212, 225, 226 Clauson v. Newburgh & S. P. K. Co 266 Commercial Ins. Co. v. Superv's. of N.Y. 216, 217 TABLE OP CASES. PAGE. People ex rel Dunkirk B. Co. V. Cassity 224 Eden Musee America Co. V. Carr 174, 175 Gas Light Co. v. Board of Assessors 223 Faile V. Ferris 123 Genesee Co.Bank v.OIm- sted 224 Glens Falls Ins. Co. v. Ferguson 224 Gould V. Mutual Union Tel. Co 446 Hanover Fire Ins. Co. v. Coleman 217 Harriman v. Paton 659 Heiser v. Assessors . . 252 Herrick v. Smith 518 Jenkins v. Parker Vein Coal Co 172 Knickerbocker Fire Ins. Co. V. Coleman. . . 225 ; Law V. Commissioners . 252 Lincoln v. Assessors of Town of Barton. . . 214 McDonald v. TJ. S. Mer. Kep. Co 659 McKinch v. Bristol & Eennselaerville Turnpike Co 406 Manhattan Fire Ins. Co. V. Commissioners of Taxes 219, 224 Mann V. Mott 532 Marsh v. Delaney 252 M.F.Ins.Co. V. Commis- sioners of TaxeB.219, 223 Mutual Union Tel.Co. v. Commissioners of Taxes.219, 220, 223, 250 National Freight & Light- erage Co. V. Com- missioners of Taxes and Assessments. . 214 Newcomb v. McCall 434 Odle V. Kniskern 521 I Oswego Canal Co. v. City of Oswego.... 213, 227 PAGE People ex rel Otsego Bank v. Supevisors 224 Outwater v. Green 295 Pacific Mail S. S. Co. v. Commissioners of Taxes.217, 218, 219, 224, 229, 281 Parsons Manuf. Co. v. Moors 218 Porter v. Tompkins.252, 253 Pulford V. Detroit Fire Department Ill Eaplee v. Keddy 252 Boss V. Brooklyn 556 Schurz V. Cook 266 Schuylerville & N. H. E. Co. V. Betts 539 Sturges V. Keese.578,626 664 Swinburne v. Albany Med. Coll 621 Trowbridge v. Commis- sioners 224 Twenty-third Street E. Co. V. Commission- ers of Taxes. 215, 226, 227, 229, 237 U. & B. E. Co. V. Shields 224, 228 Van Est v. Commission- ers of Taxes 229 Westchester Fire Ins. Co. V. Davenport. 236, 237 West Shore ,E. Co. v. Pitman. . . 220, 221, 222 W. Gas Light Co. v. Board of Assessors 224 Williams v. Assessors. . 224 Williamsburgh Gas Light Co. V. Assessors of Brooklyn 224, 227 Wyatt V. Williams 256 People's Bank v. Kurtz 149 V. St. Anthony's E.G. Ch 663 People's Ferry Co. v. Balch ... 79 People's Ins. Co. v. Westcott. . . 45 Peoria & 0. E. Co. v. Elting. 87,142 TABLE OF CASES. XCl PAGE. Peoria E. E. I. R. Co. v. Pres- ton 88 Percy v. Millaudon 128 Perkins v. Church •. . 308 V. Savage 91 V. Union B. H. & E. MachCo 95 Perrine v. Chesapeake & D. Canal Co 24 Perry v. Hoadley 79, 295 V. Kound Lake C. M. Assoc 578 Persse & Brooks Paper Works V. Willett.ase, 399, 400, 414 489, 490 Peru Iron Co., Ex parte. ..39, 45, 63 Peruvian E. Co. v. Thames & M. M. Ins. Co 59 PesterfleldA Mayor, etc., v. Vic- kers Ill Peter v. Kendal, 305, 306, 414 Petersburg v. Metzger 23, 28 Petersen V. Chemical Bank. .. . 348 v. Illinois Land & Loan Co 194 V, Mayor.etc, of N. Y. 63 V. New York 39 Petrie v. Guelph Lumber Co . . . 134 Pettibone v. MoGraw 290, 347 Pew V. Gloucester National Bank 114 Pfeychand v. Hood 89, 94 Pfohl V. Simpson. 298, 300, 637, 656 Phelan v. Hazard 87, 170 Phelps V. Farmers' & Mechanics' Bk 192 V. People 180 Philadelphia & E. C. & I. Co. v. Hotchkiss 644 Philadelphia & E. E. Co. v. Ervin 104 Philadelphia & W. C. E. Co. v. Hickman 87, 170 Philadelphia "W. & B. E. Co. v. Cowell 81 V.Maryland 273, 277 PAGE. Philadelphia Savings Bank Case Ill Philips V. Wickham..l07, 111, 205, 206, 302, 618 Phillips V. Eastern E. Co 189 Phillips V. Therasson 635 Phoenix Bank v. Donnell 472 Phoenix Foundry Co. v. North Elver Construction Co. 324,325 Phoenix Iron Co. v. Common- wealth 178 Phoenix Warehousing Co. v. Sadger. .19, 77, 89, 94, 429, 431 Pickering v. Templeton 95 Pickett V. School District 167 Pierv. George.568, 624, 641, 646 648, 670 Pier V. Hanmore 142, 197, 624, 647, 648, 649, 669, 670 Pierce v. Burroughs 193 V. Emery 30 Pilcher v. Brayton 651 Pirn's Case 81 Pinney v. Johnson 48 Pioneer Paper Co., Matter of. . 504 Piscataqua Ferry Co. v. Jones, 19, 90, 92, 102 Pitohford v. Davis 88 Pitot V. Johnson 106 V. Alleghany County.188, 189 V. Clarke 156 V. Graham 102 V. Stewart.. .87, 102, 141, 170 Pittsburgh & S. E. Co. v. Gaz- zam 77, 95 Pittsburgh Bank v. Whitehead 59 Pittsburgh Carbon Co. v. Mc- Millin 279 Pittsburgh W. & K. E. Co. v. Applegate 144 Pixley v. Eoanoke Nav. Co . . . 397 Plainview v. Winona & St. P. E. Co 278 Planters Bank v. Bank of Alexandria 396 V. Bivingsville Cotton Manuf. Co 290 xcn TABLE OF CASES. PAGE. Planters Bank v. State . , 409 Planters & Miners Bk. v. Pad- gett 478 Planters' & M. Mut. Ins. Co. v. Selma Savings Bank . .106, 154 Piatt V. New York & B. E. Co. 272 Platte Valley Bank v. Harding. 483 Plimpton V. Bigelow . . 73, 493, 662 Plumbe V. Neild 193 Plympton v. Bigelow 493 Podmore v. Gunning 336 Polger V. Columbia Ins. Co. . . . 399 Pollard V. Bailey 373 Pollock V. National Bank 630 Pomeroy v. New York & N. H. E. Co 495, 496 Pond V. Vermont Valley E. Co. 133, 138 Pontlfex V. Bignold 483 Poole V. Middleton 159 V. West Point Butter & Cheese Assoc 175 Pope V. Terre Haute Car Manuf. Co 494, 496 Porter v. Bank of Eutland .... 54 V. Eobinson 663 People ex rel. v. Tomp- kins 252, 253 Port Gibson v. Moore 309 Potter V. Bank of Ithica 64 V. Merchants' Bank. . . . 345 Poughkeepsie & S. P. PI. Eoad Co. V. Griffin 95 Poulters Co. v. Phillips 107 Poultney v. Bachman 112, 157 Powell V. North Missouri E. Co. 272 Powers V. Briggs 48 Powles V. Page 59 Pratt V. Eatfti 347 V. Pratt 189 Presbyterian Mut. Assurance Fund V. Allen 113 President & Directors of the Bank of Metropolis v. Gut- tschlick 61 President, etc., v. Trenton City Bridge Co 383 PAGE." Preston v. Grand Collier Dock Co 83, 94 V. Missouri & P. L. Co. 54 Price V. Anderson 193 V. Taylor 36, 38, 53 Priest v! Essex Hat Mfg. Co. . . 308 Pringle v. Phillips 64 Proprietors of the City Hotel of Worcester v. Dickinson 79, 86, 87 Prospect Park & C. I. E. Co., Matter of . . . .275, 276, 520, 539 V. Williamson 518- Protection Ins. Co. v. Ward ... 99 Proude v. Whiton 188, 194 Pugh & Sharman's Case. . . .82, 84 Pulford, People ex rel. v. De- troit Fire Department .... 111. Pullan V. Cincinnati & C. A. L. E. Co 167 Pullman v. Upton 176 Pullman Palace Car Co. v. Texas & Pao. E. Co 281 Pumpelly v. Phelps 48 Purinton v. Insurance Co 49 Putnam v. City of New Albany 82. Pyrolusite Manganese Co., Mat- ter of. . ..320, 324, 327, 328, 421 Queen v. Government Stock Investment 206 Quigley v. DeHaas 36 Quincy Canal Co. v. Newcomb . 397 Quiner v. Marblehead Ins. Co. 108, 153, 155, 156 Eacine & M. E. Co. v. Farmers' L. &T. Go ..271, 479 Eaisbeclc v. Oesterricher 577 Eamsey v. Erie E. Co. 315, 426, 503, 505 Eand v. Hubbell 190, 193 v. Proprietors Upper L. &C. Co 473 Eandall v. Van Veohten 39 Eandell v. Trimen 159 Rankin v. Elliot 439, 453 V. Sherwood 310 Eankine v. Elliott 439, 45* TABLE OF CASES. xcm PAGE. Eansom v. Priam Lodge 484 Kaplee, People ex rel. v. Keddy, 252 Kathbun v. Snow 44, 45 Kaymond v. Caton 145 V. Leavitt 281 Bead v. Lozin 300 V. Memphis Gayoso Gas Co... 176 Keaveley, Ex parte 84 Eecamier Manuf. Co. v. Sey- mour 464 Keceivers v. Paterson Gas Light Co 340 Beceivers Bk. of Circleville v. Renick 396 Keciprocity Bank, In re 82 Kector of Trinity Church v. Vanderbilt 641, 643, 645 Bedmond v. Diokerson 501 V. Enfield Manuf. Co. 494 V. Hoge 491 Eeed v. Cumberland & 0. Canal Co 384, 411 V. Hayt 114 V. Keese 124, 644 V. Eiohmond St. K. Co. 85, 86 V. State 485 Beese Biver S. M. v. Smith Co. 90, 92, 94 Eeformed Dutch Church v. Brandfcw 123 Bef ormed Presbyterian Church, Matter of 395 Eeformed Protestant Dutch Church V. Brown 78 Beg. V. Fisher 110 V. Langton 485 V. Saddlers Co 110 Eegents of University of Mary- land V. Williams. .396, 398, 403, 410 Eeichwald v. Commercial Hotel Co 30 Beid's Case 84 V. Batonton Manuf. Co. 99, 106 FAOE. Eeid V. The Evergreen 504 Bembert v. South Carolina B. Co 481 Bemington v. Samana Bay Co. 308 Bendell v. Harriman 54 Eenick v. West Union Bank. . . SO* Bensselaer & S. B. Co. v. Davis, 53T Eensselaer & W. Plank Boad Co. V. Barton. . .78, 86, 97, 142 v. Wetsel 96 Bevere v. Boston Copper Co., 305, 414 Bex V. Amery 397, 400, 407 V. Ashwell 112 V. Bank of England 189 V. City of London 40T V. Corporation of Carma- than 411 V. Doncaster 45 V. Grosvenor 407 V. Head 105 V. Larwood 207 V. Liverpool 45 V. Mayor of London 407 V. Pasmore 309, 407, 410 V. Saunders 407 V. Theodoric 45 V. Waddington 281 V. Wynn 207 Eeynolds v. Commissioners of Stark Co 30 V. Mason 643 V. Myers 479 Bhey v. Edensburg 7^ Bhinebeck & Connecticut B. Co., Matter of 536; Bice V. Gove 38: V. National Bank 380, 411 Biohards v. Beach 208, 296, 297,299, 301 V. Brlce 294, 298: V. Coe 289, 299! V. Crocker 2, 183, 196, 295, 296, 298' V. Kinsley 2, 183, 295, 300 :XC1V TABLE OF CASES. PAGE. Hichards v. Merrimao & C. B. K. Co 166, 167 Jlichardson's Case 84 V. Abendroth 651 V. Pitts ; 479 V. Richardson 193 V. Sibley 31 V. "Williamson 159 Hichmond F. & P. K. Co. v. Snead 47 Hichmondville Manuf. Co. v. Prall 20, 160 3.ider Life Kaft Co. v. Koaoh. . 578 -Eider v. Nelson & A. Union Paotory 475, 476 V. Union India Rubber Co 629 'Kidgefield & N. Y. B. Co. v. Brush 89 Bidgeway Township v. Gris- wold 271, 272 Biggs V. Cragg 193 Biley v. City of Rochester 661 Rinn v. Aston Fire Ins. Co. 424, 454 Bio Grande Extension Co. v. Coby 41 Eittenhouse v. Ammerman 48 Bives V. Montgomery S. P. B. Co 90,91, 93 Roach V. Duckworth 641, 646 Eoberson v. Conrey 304 Boberts v. National Ice Co. 480, 482, 487 Robertson v. Bullions 136, 451 Hobinson v. Attrill 201 V. Bank of Attica. . . 390 V. Beall 309 -« Edinboro Acad- emy 79 V. Kanawha Valley Bank 48,52, 53 V. Mayor of Franklin 111 V. National Bank of New Berne.. 632, 659 ■V. Pittsburgh &C.R. Co 90, 94 FAGE Robinson v. Bobinson 98 V. Smith.... 127, 131, 132, 133, 137, 465, 466, 467, 468, 469, 502, 504 • V. Thompson 200 V. West 491 Eochester, City of, v. Bronson 425 BochesterDist. Tel. Co., Matter of ^58, 620 Eochester Water Commission- ers, Matter of 518, 567 Eochester, Hornellsville & C. B. Co., Matter of 523 Eochester & Genesee Valley E. Co. V. Beckwith 532 Rochester & S. B. Co. v. Bud- long 529 Eochester Ins. Co. v. Martin 22, 23 Eochester Sav. Bank. v. Aver- ell 578, 666, 668 Eockford B. I. & St. L. B. B. Co. V. Sage 115 Eookville & W. Turnpike Road V. Maxwell 145 V. Van Ness 83, 144 Eocky Mountain Nat. Bank v. Bliss 656, 657 Bodburn v.Utioa I. &E. E. B. Co 373 Bodman v. City of Buffalo 533 Bogers v. Hastings &DjE. Co. 115 V. Lafayette Agricul- tural Works .. .133, 138, 274, 468 V. Michigan S. & N. I. B. Co 420 Eoland v. Haven. 166 Eollins V. Clay 302, 396 Boman v. Fry 84 Borne Sav. Bank v.Kramer.662, 663 Eondout & Oswego R. Co. v. Field 533 Borke v. Thomas 643, 646 Bose V. San Antonio & M. G. B. Co 96 Bosenback v. M. & B. Bank. . . 4,39 TABLE OP CASES. XCV PAGE. Kosenback v. Salt Springs Nat- ional Bank ... 154 Eosenbaumv. Union Pao.K.Oo. 578 Eosevelt v. Brown 560 Koss V. Estate's Investment Co 92, 94 V. Southwestern E. Co. . 20 People ex rel., v. Brook- lyn 556 Eothwell V. Eobinson 474 Eo well V. Oleson 54 Eoyal Bank of India's Case .... 83 Euggles V. Brock 429, 431 V. Collier 23 Kunk V. St. John 348 Eunyan v. Coster 23, 27, 489 Eush V. Halcyon Steamboat Co. 479 Eussell V. Bristol 86 V. Folsom 49 V. McClellan 396, 414 V. McLellan. . .302, 305, 388 V. Topping 23 Eutland & B. E. Co. v. Lincoln. 81 Eutter V. Kilpatrick 143, 148 Eutz V. Esler & E. Manuf. Co. . 93 Ryan v. Leavenworth A. & N. W. &E. Co 469 Eyder v. Alton & S. E. Co. .19, 96, 190 S. Sacketts Harbor Bank v. Pres- ident, etc., of Lewis County Bank 64 Saffold V. Barnes 89 Safford v. Wyokofe 42, 47 Sagory v. Dubois 78, 441 St. Charles Manuf. Co. v. Brit- ton 77, 84 St. Clair v. Cox 496 St. ClairTumpike Co. V. Illinois. 24 St. John V. Erie E. Co 189 St. Lawrence Steamboat Co., In re 206 St. Louis, City of, v. St. Louis Gas Co 479 PAGE St. Louis, Ft. S. & W. Co. v. Grove 41 St. Louis Gas Light Co. v. City of St. Louis 478 St. Louis, I. N. & S. E. Co. v. Berry 272 V. Bigelow 7S St. Louis Perpetual Ins. Co. V. Goodfellow 154 St. Luke's Church v. Mathews, 104, 110, 111 St. Mary's Bank v. St.John, 127, 132 St. Paul S. & T. F. E. Co. v. Eobbins 85 Salem Bank v. Gloucester Bank 42, 105 Salem Milldam Corporation v. Eopes 82, 88, 145 Salma & T. E. Co. v. Tipton. . . 395 Salmons v. Laing 469' Saltmarsh v. Planters' & M. Bank 309^ Samuel v. Holladay 465. Samuel v. Central 0. C. & P. Exp. Co 105 Sanborn v. Lefferts. . .124, 415, 637, 641, 642 Sandtordv. Supervisors of N.Y. 214 Sands v. Birch 424 V. Hill 330 San Francisco & N. P. E. Co. v. Bee 32 Sanger v. Upton 79, 82, 99, 304 Santa Clara M. & L. Co. v. Hayes 282 Santa Clara Manuf. Assoc, v. Meredith 115 Santa Cruz E. Co. v. Schwartz, 88 Santa Eulalia Silver Min. Co., In re 317, 322- Sargent v. Franklin Ins. Co. 153, 155, 15& V. Webster 36 Savings Association V. O'Brien, 288, 307 Savings Bank v. Davis 34 V. Hunt 108 XOVl TABLE OF CASES. PAGE. Sawyer v. Hoag 171, 194 V. Pawners Bank 59 Sayler v. Simpson 97, 98 Sayles v. Bates 155 Sayre v. Louisville U. B. Ass'n, 111 Scarlett v. Academy of Music. . 102 Schaeffer v. Missouri Home Ins. Co 143 Sohallenberger, Ex parte 495 Sohenck v. Andrews . . 624, 634, 638, 647, 648, 652, 669 Schenectady & S. Plank K. Co. V. Thatcher 97, 582, 630 Schloss V. Montgomery Trade Co 101 Sohmlttler v. Simon 48, 52 Scholl Town of Monticello v. Kendall 49 Schollenberger, Ex parte .... 496 Sohurz, People ex rel. v. Cook. 266 Sohuylerville & V. H. E. Co. People ex rel. v. Betts. . . . 539 Sohwenk v. Naylor 134 Soohey v. Gibson 384 Scotland County v. Thomas . . . 277 Scott V. Avery 112 V. Baker 51 V. Depeyster 130, 131, 132, 135, 136, 167, 502 V. Hnasheer 277 V. McAlpin 35, 36 V. Middletown TJ. & W. G. Co 60, 62 V. Middletown U. V. & W. G. E. Co 63 V. Pequonnoek Nat. Bank, 20 Scovel V. Eoosevelt 193 Scovill V. Th^er 98, 171 Scale V. Baker 133 Sears v. Waters 641 Second Nat. Bank v. Hall 478 Security L. Ins. & Annuity C, Matter of 434 Security Loan Assoc, v. Lake. 157 Segelken v. Meyer 351 Seizer v. Mali 625, 627 PAGE. Selma&T. E. Co. v. Tipton. 79, 96, 144 Selma M. & M. E. Co. v. Ander- son 88, 92 Seneca County Bank v. Neass 57, 111 Sewall V. Eastern E. Co 85, 95 Seymour v. Sturgess 86, 143 Shackelford v. New Orleans J. & G. N. E. Co 115 Shaler Hall Quarry Co. v. Bliss 124, 183, 641, 642, 644 Shanks v. Lancaster 37 Sharp V. Speir 324 Sharpless v. Mayor 83 Shattuck V. Green 158 Shawmut Bank v. Plattsburgh & M. E. Co 23 Shelbyville & E. Turnpike Co. V. Barnes 274, 276 Shelbyville E. Co. v. Louisville C. &L. E. Co 25 Sheldon Nat. B. Co. v. Eieke- meyer Hat B. M. Co . . . 62, 176 Shelllngton v. Howland 634, 637, 650, 656 Shelton V. Mayor of Mobile . .. 110 Sherman v. Pitch 26 Sherwood v. Alvis 24, 25 Shickle v. Watts 86 Shield V. Sullivan 360 Shields v. Ohio 271, 272, 278 Short V. Medbury 650, 657 Shreveport v. Levy Ill Shurtz V. Schoolcraft & T. E. E. Co ' 81, 88 Shutesbury v. Oxford 64 Sibley v. Quinsigamond Nat. Bank 20 Silver Lake Bank v. North. 26, 27, 167, 395, 489 Simeral v. Dubuque Ins. Co. . . 113 Simm V. Anglo American Tele- graph Co 157 Simonson v. Spencer 308 Simpson's Case 141 V. Garland 48 TABLE OP CASES. xcvu PAGE. "Simpson v. Moore 193 Sims V. Street K. Co 82 Singer Manuf. Co. v. Bennett.. 479 Skinner v. Dayton 32 Slattery v. St. Louis & N. O. Transp. Co 133 Slawson v. Loring 49 Slee V. Bloom 108, 302, 303, 305, 307, 308, 380, 387, 388, 399, 400, 406, 408, 410, 411, 413, 414, 448, 499, 560, 630 ■SUplier V. Earhiart 143, 148 Small V. Herkimer Manuf. Co. 86, 627, 628 -Smith Sir James' Case 407 V. Alabama Life Ins. Co. 24 V. American Coal Co 153 V. Bennett ' 38 V. Board of Water Com- missioners 57 V. Chadwick 134 V. Consol Stage Co 504 V. County of Clark 483 V. Danzig 129, 335, 422, 433, 453 T. Gower 143, 148 Y. Huckabee 304 -y. Hurd 468, 469 ■y. Manhattan Ins. Co. . . 361 V. Mayor 217 V. Metropolitan Gas Light Co 456 V. Mississippsi& A.R. Co. 483 V. Plank Eoad Co. . . .91, 102 T. Plattville Manuf. Co. . 189 V. Poor 468, 469 T. Eathbun 132, 505 V. Keese Eiver E. Co. . . 93 V. Smith 275 V. State .'. 411 V. Tallahassee B.P. E. Co. 88, 89, 93 V. Water Commissioners 55 Smook V. Henderson 160 Stbrer v. Times Print & Pub. Co 488 PAGE. Society for the Propagation of the Gospel v. Town of New Haven 412 V. Wheeler 27, 489 Southern Bay Dam Co. v. Gray. 145 Southern Express Co. v. Wes- tern N. C. E. Co 26 Southern Hotel Co. v. Newman 54 Southern Nashville Street E. Co V. Morrow 237 Southern Pac. E. Co. v. Orton 397 Southern Plank Eoad Co. v. Hixon 91 Southgate v. Atlantic & P. E. Co 40 South Georgia & P. E. Co. v. Ayres 143, 148 South Mountain C. M. Co., In re 304 Southwestern E. Co. v. Georgia, 273 Spaokman v. Evans 26 Spangler v. Indiana & I. C. E. Co 142 Spargo's Case 87, 170 Sparks v. Woodstock Iron & Steel Co 118 Sparrow v. Evansville & C. E. Co 275, 277 Spear v. Crawford. .19, 78, 142 145, 148, 347, 630 V. Hart 191 Spears v. Ward 112 Spence v. Shapard 308 Spencer v. Champion 395 Spering's Appeal 132, 465 Sprague v. Dunton 129 v. Illinois E. Co 277 Springs' Appeal 127 Spurdock v. Pacific E. Co 106 Squires v. Brown 621, 637, 642 Stafford Nat. Bank v. Palmer. . 478 Stanford Water Co. v. Stanley, 517 Stanley v. Eiohmond & D. E. Co 485 Stanton v. Allen 281 V. Wilson 78 Starkweather v. Bible Society 27 7 XCVlll TABLE OF CASES. PAGE. Starrv.Peck 64 State V. Attorney-General 412 V. Bailey 87, 170, 271, 272 276, 401 V. Baltimore & 0. K. Co. 190 V. Bank of Charleston.396,409 V. Bank of Louisiana.189, 191 V. Bank of Maryland . 30, 303, 396 V. Bell 485 V. Bradford 18, 384 V. Butler 383, 411 V. Caldwell Ill V. Carr 396 V. Chicago B. &Q. B. Co. 271, 277 V. Cincinnati Gas Co. 24 V. Cincinnati Gas Light &C. Co 411 V. Clinton & P. H. B. Co. 413 v. College of California . . 31 V. Columbia & H. Turn- pike Co 393 V. Commercial Bank. . . . 385 V. Commercial Bank of Cincinnati 391 V. Commercial Bank of Manchester, 388, 394, 401, 404, 406, 407, 411 V. Cent. 0. Mut. Bel. Assoc 385 V. Concord B. Co 275 V. Conklin 107, 111 V. Consolidation Coal Co. 276, 393, 412 V. Council Bluffs & Ne- braska Ferry Co. . .393, 394, 406, 407 V. Crawfoldsville & S. Turnpk. Co., 392 V. Crescent City G. L.Co. 96 V. Curtis 42, 105, 111 V. Essex Bank . 385, 392, 405 V. Pagan 384, 396, 399 V. Farmers' College, 385, 391, 392, 407 V. Ferguson 45 PAGE. State V. First Nat. Bank of Jef- fersonville 20 V. Fourth New Hamp- shire Turnpike Co. 396, 409, 410 V. Franklin Bk. ^ 153 V. Godwinsville & P. Maod.B. Co 409 V. Grant 484 V. Hancock Co 24 V. Hardy Ill V. Harris 155 V. Hartford & N. H. B. Co 27 V. Hazelton & L. B. Co. 405 V. Howe 478 V. Jefferson Turnpike Co. 95 V. Leatherman 385 V. Lehre 81 V. Merchant's Exchange. 110 V. Merchants' Ins. Co. 305, 403 V. Merchants' Ins. & T. Co 383,393, 410 V. Milwaukee L. S. & W. E. Co 384 V. Minnesota Cent. B. Co. 385, 391, 392, 396, 402, 404, 405, 406, 407 V. Minnesota Thrasher Manut. Co 392 V. Mississippi 0. & B. B. Co 409 V. Morristown Fire As- sociation 73 V. New Orleans & 0. B. Co 153 V. New Orleans Gas Light Co 393, 406, 409 V. New Orleans Gas Light &B. Co 396, 407 V. Northern Pao. B. Co.. 278 V. Noyes 316, 39S V. Oberlin Building & Loan Assoc 385, 391, 392 V.Overton 107, 110 TABLE OF CASES. XCIX PAGE. State V. Patterson & H. Turn- pike Co 383, 411, 417 V. Pawtuxet Turnpk. Co. 893 403, 409, 412 V. Pennsylvania & O. Canal Co. .. .385, 391, 413 V. People's Mut. Ben. Assoc 385, 392 V. Pipher...393, 394, 396, 401 V. Bamsey Co 495 V. Beal Estate Bank, 306, 383, 384, 387, 391, 392, 393, 395, 399, 404, 408, 409, 414 V. Elo Grande B. Co.393, 412 V. Boyalton &"W. Turnpk. ■ Co 391, 394 V. St. Louis Perpetual Ins. Co 411, 417 V. St. Paul & S. C. E. Go. 383 V. Seneca County Bank. . 401 V. Smitli 82 v. Societe Bepublicaine 391, 393 V. Southern Pacific B. Co. 404, 412 V. Taylor 411 V. Tombeckbee Bank 407 v. Trustees of Vincennes University 388, 409 V. Tudor. . .107, 157, 205, 206 V. TJrbana & C. M. Ins. Co 393, 403 V. Van Home 24 V. "Wabash B. Co 342 V. Western N. C. B. Co.. 485 V. "Whites Creek Turn- pike Co 411 V. Willis 128, 132 V. Wood 385, 392 V. Woodward 395 ex rel. Attorney General V. Atchison & K. B. Co 274 BergSnthal v. Ber- genthal 178 PAQB. state ex rel. v. Brown v. Bailey, 317 State Bank v. Braokenridge. . . 73 V. State . . .306, 309, 405, 406, 407, 413 State Ins. Co. v. Bedmond 19 State Savings Assoc, v. Kellog 290, 295, 298, 308 State Treasurer v. Auditor Gen- eral 274 Staten Island Bapid Transit Co., In re... 520, 524, 525, 538. Staut V. Zulic 381 Steam Nav. Co. v. Weed 64 Steamship Co. v. Heron 154 Stebbins v. Edmunds 198 V. Phoenix Fire Ins. Co.. ..153, 154, 156, 630 Stedman v. Eveleth 308. Stephens v. Fox 80 Stettauer v. New York & Scran- tom Const. Co 178 Stevens Eden Meeting-House Soc 45 V. Butland & B. E. Co. 274 Stewards of M. E. Church v. Town 90 Stewart v. Ackley 98 Stinchfield v. Little 34, 35, 36 Stockbridge v. West Stock- bridge 45 Stockholders of Shelby E. Co. V. Louisville 0. & L. B. Co 45 Stoddard v. Shetucket Foundry Co 141 Stokes V. Lebanon & S. T. Co. 86, 145 V. Stickney.641,643, 645, 645 Stone V. Berkshire Cong. Soc. . 479 V. Gt. Western Oil. Co... . 79 V. Wiggin, 308 V. Wood 35, 36 Stoneham Branch E. Co. v. Gould 88 Stoney v. American L. Ins. Co. 26 -c TABLE OJF CASES. PAGE. Stoops V. Greenburg& B. Plank Boad Co 395 Story V. Furman 560 Stoutimore v. Clark 483 Stover V. Flack, 298.. 308, 649, 656 Stow V. Wyse 45 Stowe V. Flagg 95 Strasburg B. Co. v. Eohter- naoht 95 Straus V. Eagle Ins. Co 23, 141 Stringer's Case 190 Stromeyer v. Combes 126 Strong V. Brooklyn Cross- Town B. K. Co 175 V. McCagg.305, 381, 383, 397, 399, 414 V.Smith 619 V. Wheaton....307, 581, 628, 636 Stuart V. Palmer 235, 521 V. Valley K. Co 81, 86 Studebaker Bros. Manuf, Co. v. Montgomery 483 Studwell V. Charter Oak Ins. Co 488 Sturdlvant v. Hull 36, 48, 51 Sturges, V. Vanderbilt 100, 194, 310, 316, 379, 413 Sturges People ex rel v. Keese, 578, 626, 664 Sturgis V. Spofford 646 Stuyvesant v. New York Ill Suburban Eapid Transit Co., Matter of 520 Summer v. Marcj' 83 Sumwalt V. Bidgely 36 Sun Mutual Ins. Co. v. Mayor etc., of New York. . . . 214, 217 Supreme Co#ncil v. Garrigus.. 112 -Susquehanna Bridge & B. Co. V. General Ins. Co 166 Sutherland V. Olcott..635, 686, 638 Suydam v. Moore 664 Swartara E. Co. v. Brune 88 Swartwout v. Michigan Air Line E. Co 88 Swift V. State 178 PAOE. Swinburne, People ex rel., v. Albany Med. Col 621 Swords V. Northern Light Oil Co 378, 418 Symon's Case 84 Syracuse P. & 0. B. Co. v. Gere, 93 Syracuse Sav. Bank v. Syracuse C. &N. Y. B. Co 458 Taft V. Brewster 36, 48 V. Hartford P. & F. E. Co. 188, 190 Tagg V. Tennessee Nat. Bank . . 55 Taggart v. Western Md. E. Co. 19, 396 Talltoadge v. Fishkill Iron Co. 136, 376, 443, 560, 663 Talmage v. Pell 83, 429, 662 Tannatt v. Bocky Mountain Bank ^,.38, 48, 51, 52 Tar Elver Nav. Co. v. Neal 79 Tassey v. Church 48 Taunton & S. B. Turnpike Co. V. Whiting 145 Taylor v. Attrill 299 V. Earle 33, 274, 504 V. Griswold....l06, 107, 111, 205, 206 V. Holmes 383, 384, 397 V. Miami Exporting Co. 127, 132, 167 V. Thompson 198, 199 Taylors de Ipwich v. Sherring, 407 Telegraph Co. v. Davenport. . . 160 Tempest v. Kilner 96 Tennessee v. Sneed 384 V. Whitworth 277 Tennessee & A. B. Co. V. Adams,' 22 Terhune v. Midland E. Co 274 Terrell v. Branch Bank of Mo- bile 59 Terrett v. Taylor 306, 384, 390, 400, 407 Terry v. Anderson 100 V. Eagle Lock Co 26 Thacher v. Dinsmore 48 TABLE OF CASES. CI PAGE. Thames Tunnell Co. v. Sheldon 77 The Banks v. Poitiaux 397 Thebus v. Smiley 295 Thigpen v. Mississippi Cent. B. Co 79, 89 Thirty-Fourth Street E. Co. Matter of 526 Thomas v. Central City Ins. Co. 206 V. Musical Protective Union 109 V. Mutual Protective Union 109 V. West Jersey R. Co. 23, 24, 26, 60 Thomas F. Meton & Sons v. Isham Wagon Co 472 Thompson v. Abbott 272 V. Erie E. Co. ..457, 662 V. Lambert 166 V. Meisser 295 V. People... 18, 391, 392, 393, 397, 400, 410 V. Eeno Sav. Bank.. 81 V. Schermerhorn . . . 662 V. School District No. 4 40 V. Waters 27 Thomburgh v. Newcastle & D. E. Co.. 92, 102 Thornton v. Lane 308, 309 V. Marginal Freight Railway 310 Thorp V. Woodull 79, 143, 148 Thurber v. Thompson, 624, 648, 669, 670 Thurston v. Duffy 613, 635, 637 Ticonic W. P. & M. Co. v. Lang, 81 TQden v. Barnard 48, 49, 52 Tilsonburg, etc.,R. Co. v. Good- rich 85, 96 Tinkham v. Borst 380, 664 Tippets V. Walker 36 Titus V. Kyle 48, 52 Toledo Agricultural Works v. Heisser 48, 52 Toledo & A. A. E. Co. v. John- son 383, 396, 413 Toll Bridge Co. v. Betsworth. . 58 ToUes V. Wood 635 Tomlinson v. Branch 273, 277 V. Ward 341 Tompkins v. Butterfield 41 Tonica & P. R. Co. v. Stein . . 89 Topeka B. Co. v. Cummings. . . 88 Torbettv. Eaton. 103, 186, 196, 198 Toronto Trust Co. v. Chicago B. &0. R. Co 493 Towar v. Hale 380, 395, 664 Town of Duanesburg v. Jen- kins 669 Town of Middleton v. Round- out & 0. E. Co 457 Towne v. Eice 51 Townsend v. Corning 35 v. Goewey 86, 101 Tracy v. Yates. . .635, 636, 658, 659 Trasher v. Pike Co. E. Co 85 Travellers' Ins. Co. v. Brouse . 384 Tread well v. Salisbury Manuf. Co 274, 277, 500, 501 Treasurer v. Commercial Coal Mining Co 159 Trenton Banking Co. v. Wood- ruff 55 Trimble v. Doty 98 Trowbridge v. Scudder 478 Trowbridge, People ex rel. v. Commissioners 224 Troy & B. E. Co. v. Northern Turnpike Co 528, 529, 531 Troy & B. R. Co. v. Tibbits 79, 8V, 142 V. Warren. 81, 82 Troy & Rutland E. Co. v. Cleve- land 532 v. Kerr. 32, 97, 144, 274, 276, 415, 664 Troy Turnpike & E. Co. v. Mc- Chesney..97, 143, 144, 627, 628 Trustees of Cahokia v. Rauten- burg 51 Cll TABLE OF CASES. , PAGE). Trustees of College Point v. Dennett 528 Trustees Dartmouth College v. Woodward 305 Trustees of Exempt Firemen's Fund V. Koome 241 Trustees of Free Schools v. Flint 106 Trustees of Molntire Poor School V. Zanesville Canal &M. Co 307, 387, 406 Trustees of South Newmarket Meth. Sem. v. Peaslee 23 Trustees of Vernon Soc. v. Hills. . . .306, 395, 400, 408, 414 Tuchhand v. Chicago & A. K. Co 493 Tucker v. Bass 36 V. Gilman 628, 635, 661 Tucker Manuf. Co. v. Fair- banks 36, 51 Tuokerman v. Brown 95 Tugman v. National Steamship Co 351 Turnbull v. Payson 82, 144 Turner v. Chilllcothe & D. M. C. B. Co 40 Tuttle V. Michigan Air Line K. Co 276 Twenty Third Street, People ex rel. v. Commissioners of Taxes 215, 227, 229, 237 Twin Creek & C. T. P. Co. v. Lancaster 79 Tyler v. Mtna, Ins. Co 488 Tyng V. Clarke 643 TJ. & B. K. Co., People ex rel. V. Shields 224 TJmsted V; B^|skirk 372 Union Bank v. Campbell . . .56, 59 V. Bidgely 106 Union Bank of Georgetown v. Laird 156 Union Bank of Maryland v. Eidgely 105 tTnion Branch E. Co. v. East Tenn. & Ga. E. Co 395 PAGE. Union Canal Co. v. Loyd 5* Union E. E. Co. of Brooklyn, Matter of 537 Union Hotel Co. v. Herse. 82,83, 87 Union Ins. Co. Matter of 620 Union Ins. Co. v. Frear S. Manuf. Co 89 Union Mining Co. v. Eooky Mountain Nat. Bank 57 Union Mutual Fire Ins. Co. v. Keyser 42 Union Mut. Life Ins. Co. v. Frear Stone Manuf. Co 94 Union National Bank of Chi- cago V. Douglass 9& Union Pacific E. Co. v. United States 189 Union Turnpike Co. v. Jenkins, 33, 61, 78, 97, 143 United States v. Cutts 156 V. Grundy 413 V. Hart Ill V. "Williams 397 U. S. Bank v. Dandridge 34, 39 V. Davis 55, 58 V. Huth 30, 31 United States Ins. Co. v. Shri- ver 56, 57, 58, 59 United States Mercantile Ee- porting & Collecting Asso- ciation, In re 71, 7S United States Trust Co. v. New Tork W. S. & B. E. Co. 344, 366, 426, 434, 50O Unity Ins. Co. v. Cram 79 Upper Miss. Trans. Co. v. "Whittaker 473 Upton V. Englehart 91, 93 V. Hansbrough 91 V. Tribilcock..81,86, 90, 91, 93, 95, 102, 142 Utica & Black Elver E. Co., People ex rel., v. Shielgs. . 228 Utica & C. E. Co, Matter of 529 Utica Bank v. City of Utica. . . 226 V. Smalley 156 TABLE OF CASES. cm PAGE. tJtica Cotton Manuf. Co. v. Oneida Co 223, 226 TJtica Ins. Co. v Scott 23 TJtica Manuf. Co. v. Super- visors of Oneida 224 TJtley V. Union Tool Co 479 V. Vail V. Hamilton 666 Valentine, Matter of 324 Valli V. Crandall 78 Vallett V. Parker 185 Valley Bank v. Ladles Cong. Sewing Soc 316 Van Allen, Matter of 345, 359 V. Assessors 73, 149 V. Illinois Cent. K. Co 88, 150 Vanamburgh v. Baker 129 Van Buren v. Chenango Mut. Ins. Co 351, 358, 429 Vance v. Little Bock 110 Van Cott V. Van Brunt. .86, 87, 170, 429, 431, 441 Vaadall v. South San Francisco Dock Co 23 Vandenburg v. Broadway TJ. C. R. R. Co 620 Vanderbilt v. Eagle IronWorks, 564 Tan Doren v. Olden 193 Van Dyok v. McQuade.188, 189, 429 Van Hook v. Whitlock 308 Van lagen v. Whitman, 103, 196, 198 Van Lcuvan v. First Nat. Bank, 57 Van Nest, People ex rel., v. Commissioners of Taxes.. 229 Van Pelt v. United States Me- tallic Spring Co. . .314, 372, 373, 383, 384 Van Rennsselaer v. Emery 423 Vansandsv. Middlesex Bank.. 154 Van Valkenburgh v. Thomas- ville T. & G. R. Co 42, 43 Vater v. Lewis 483 Vaughan v. Vaughan 342 Vawter v. Ohio & M. R. Co. 143, 148 Vedder V. Fellows 110 PAGE Veeder v. Baker. .299, 646, 648, 649 V. Judson 641 V. Mudgett....l75, 176, 634, 637, 638, 647, 652, 654, 655, 656, 669 Veiller v. Brown 630, 637 Vermont & C. R. Co. v. Ver- mont Cent. R. Co 398 Vernon v. Palmer 641, 648 Vernon Soc. v. Hills. ..305, 386, 399 Verplanck v. Mercantile Ins. Co.. 127, 128, 132, 136, 167, 305, 339, 380, 381, 383, 384, 397, 424, 425, 436, 465, 482, 499, 503 Versse & B. Paper Works v. Willett 27 Viok V. Lane 100 Vicksburgh S. & T. R. Co. v. McKean 79, 93 Victory Webb Printing Co. v. Beecher ..... .294, 641 Vincent v. Banford 650 V. Sands 638, 641 Vinton's Appeal 193 Visscher v. Hudson River R. Co 532 VoUansv. Fletcher 118 Vredenburgh v. Behan 478 Vreeland v. New Jersey Stone Co 77, 91, 92, 133 w. Wabash St. L. & P. R. Co. v. Ham 278 Waco Lodge v. Wheeler 473 Waddill V. Alabama & T. R. Co. 24 WakeHeld v. Fargo 592, 650 Wakeman v. Dalley 64 Waldo v. Chicago St. P. & F. D. S. R. Co 92 Walker v. Crain 560 V. Mobile & O. R. Co. 95, 102 V. New Orleans Ill V. Wilmington C. & A. K. Co 41 Wallace v. Walsh 623 CIV TABLE OP CASES. PAGE. Walleocks, Ex parte 105 ■Wallingtord Manuf. Co. v. Fox 95 Walmsley V. Palmer 644 "Walter's Case 161 Wtilton V. Coe.184, 209, 294,297,298 Walworth v. Braokett 479 "Walworth County Bank v. Farmers' Loan & Trust Co. 167 Ward V. Davidson 122, 337 V. Farwell 384, 405 V. Griswoldville Manf . Co. 99, 304, 347 V. Hubbard 384 T. Johnson 47 V. Londesborough 118 V. Sea Ins. Co. 123, 128, 336, 381, 388, 393, 401, 402, 403, 404, 406 Warden v. Union Pacific K. Co. 337, 469 Warfield v. Marshall Co. Can- ning Co 30, 32, 167 Warner v. Mower 33 Warren v. King 189 Washer v. AUensville C. S. & V. Turnpike Co 144 Washington Bank v. Lewis 55 Washington & B. Turnpike Road Co. V. State, 405, 406, 407, 410 Washington Park, Matter of . . 536 Waterbury, In re 325, 331 Waterbury, Matter of 360, 361 Waters v. Carroll 423 Water Valley Co. v. Seaman . . 92 Waterville Manuf. Co. v. Bryan 486 Watkins, Ex parte 59 Watt's Appeal 166 Waukon & M.*R. Co. v. Dwyer, 86, 142 Weatherley v. Medical & Sur. Soc 104 Weber v. Fiokey 161 Webster v. Brown 35 V. Tui-ner. ... 31, 118, 306 V. Upton 81, 86 "Weekler v.First National Bank, 23 Weeks v. Love. . .297, 398, 634, 637 V. Silver I. C. M. Co. . . 628 Wehrman v. Keakirt 308 Weight V. Liverpool, London & Globe Ins. Co 473 Weiss v. Mauch Chunk Iron Co. 79 Welland Canal Co. v. Hath- away 483 Wellersburg & W. K. Plank- road Co. V. "5foung 22 Wellington v. Continental Const. & Imp. Co 208 Wells v. Jewett 466, 504 Welsh v. Usher 36 West V. Carolina Life Ins. Co.. 382 Westchester Fire Ins. Co. Peo- ple ex rel, v. Davenport, 236, 237 West Cornwall K. Co. v. Mowatt, 79 Westerfleld v. Kaddle, 577, 625, 626 V. Kaddle 44 Westfield Bank v. Cornen 57, 59 Western Bank v. Gilstrap 40 Western Bank of Scotland v. Addie 91, 92, 94 Western Pa. Co.'s Appeal 411 Western T. Co. v. Soheu. . .581, 633 Westervelt v. Demarest 134 Westinghouse Machine Co. v. Wilkinson 24 Weston V. Bear Kiver & A. W. R. & M. Co 155 West Shore R. Co., People ex rel V. Pitman 220, 221, 222 Wetherbee v. Baker 90, 94, 100 Wheaton v. Gates 547 Wheeler V. Millar. 143, 296, 297, 300, 441, 634, 636, 656 V. San Francisco & A. Co 83 Wheelook v. Kost 479 V. Moulton 33 Whipple V. Christian 568 Whitaker v. Kilroy 41 V. Masterton.624, 641 643, 647, 648, 669, 670- White V. Brownell 112: V. Campbell 309, 484= TABLE OF CASES. C^ PAQE. White V. Schuyler 159 V. Skinner 36 V. Syracuse & TJ. E. Co. 582, 664 White, Matter of, v. N. Y. Agri- cul. Soo 618 Whitehead v. Buffalo & L. H. B. Co 491, 494 White Mts. K. Co. v. Eastman 89, 90, 102 White's Bank v. Toledo Ins. Co., 22, 23, 28 White's Creek Turnpike Co. v. Davidson County 397 Whiteside v. Prendergast 341 "Whitney f . New York & A. E. Co 434 Whitney Arms Co. v. Barlow 26, 294, 641, 642, 646 White Mts. E. Co. v. Eastman, 87, 94, 95 White Water Valley Canal Co. V. Vallette 30, 31 Whiting V. Wellington 41 Whittenton Mills v. Upton 274 Whittlesey v. Delaney 346, 347 V. Frantz,.334, 374, 432, 487 Widening Carlton Street, Mat- ter of 532 Wiggins V. Freewill Baptist Church 45 ■Wight V. Shelby E. Co. .89, 92, 93, 102 Witters v. Sowles 132 Willeocks, Ex parte 207, 618 Wilcox V. Bickel 469 V. Toledo & A. A. E. Co. 484 Wild V. New York & A. S. Min. Co 40, 62 Wilde V. Jenkins. 302, 303, 305, 399, 401, 414, 448 Wiles V. Suydam. 294, 637, 643, 645, 646 Wildey v. Whitney 656 Wilkie V. Eochester & S. L. E. Co 459 PAGE, Wilkesbarre Hospital v. Lu- zerne. Ill Wilksv. Back 35 V. Georgia Pac. E. Co. . . 24 Wilkinson v. Dodd 127, 132 Willamette Falls C. M. & T. Co. V. Williams 473 William Street, Matter of 528 Williams v. Bank of Michigan . 484 V. Boice 194 V. Creswell 27 V. IngersoU 348 V. Lakey 351 V. Page 118 V. Salmond 118 V. Union Bank 397 v. Western Union Tel. Co 189, 620 V. People ex rel v. Trowbridge. ... 224 Williamsburgh Gas Light Co., People ex rel. v. Assessors of Brooklyn 224, 227 Williamson v. Davidson 104 V. Wilson 423 Willis V. Bellamy 36 Williston V. Michigan Southern & Northern Indiana E. Co. 188 Willmarth v. Crawford 45 Wilmans v. Bank of Illinois . . . 395 Wiimersdoerffer v. Lake Maho- pac Imp. Co 380, 411, 416 Wilson's Case 84 Wilson V. Little 156 Wiltbank's Appeal 190, 193 Wineham S. B. &S. C, In re.. 82 Winchester v. Baltimore & S. E. Co 56, 57, 59 Wing V. Glick 54 V. Harvey 55 Winslow V. Staten Island E. T. E. Co 474 Winter v. Baker 505 V. Muscogee E. Co. 23, 28 Wolf V. Goddard 2a Wolverhampton N. W. Co. v. Hawksford 85 CVl TABLE OP CASES. PAGE. Wonson V. Fenno 159 Wontner v. Shairp 88 Wood V. Brooklyn 110 V. Coosa &C. B. Co. 19, 144, 160 V. Dummer 194, 304, 347 Woodruff V. Erie K. Co 26, 578 V. McDonald 85 Woodruff & Beach Iron Works V. Chittenden 635, 637 Woolf V. City Steamboat Co. 485 Worcester Med. Inst. v. Hard- ing 484 Worcester Turnpike Corpora- tion V. Willard 79, 97, 145 Woven Tape Skirt Co., Ex parte 329 Wyatt, People ex; rel. v. Wil- liams 256 FAQE. Wyman v. American Powder Co 149 Y. York &,N. M. K. Co. v. Hudson 128, 167 Youmans v. Simmons 249 Young V. Brioe 297, 298, 299 V. Drake 133, 138 V. Harrison 395 V. New York & Liv. Steamship Co 443 V. Vough 106, 154 Zabriskie v. Cleveland C. & C. K. Co.. 25 V. Hackensact? & N. Y. E. Co.... 32, 276 Zimmerv. State 272, 277 Zoller V. O'Keefe 641 643 BUSINESS COBPOEATIONS. CHAPTER I. ANALYSIS OF BUSINESS ACT. Sec. 1. Object. Sec. 2. Scope of Act. Seo. 3. Preliminary Certificate. Sec. 4. Same — "Full Liability" and "Limited Liability" Companies. Sec. 5. Same^Location of Business and Principal Office. Sec. 6. Same — Change of Principal Business Office. ■Sec. 7. Corporate Name. Sec. 8. Capital Stock. Sec. 9. Same — Increase of Stock. Sec. 10. Same — Statement of Increase. Sec. 11. Same — Diminution. Sec. 12. Certificates of Stock. Sec. 13. Powers and Privileges. Sec. 14. Book for Subscriptions. Sec. 15. Meeting of Subscribers — Adoption of By-Laws. .Sec. 16. Directors — Election of. Sec. 17. Same — Cumulative Voting. Sec. 18. Same — ^Duty of Directors. Sec. 19. Same — Kesignation of Directors. Sec. 20. Verified Record and Certificate of Incorporation. Sec. 21. Organization Tax. Sec. 22. License Revoked. Sec. 23. Annual Report. Sec. 24. Same^Pailure to Make Report. Sec. 25.' Same — Minority Report. Sec. 26. Same— Liability of Stockholders — FtiII Liability Companies. Sec. 27. Same — Limited Liability Companies. Sec. 28. Reorganization. Sec. 29. Certificate of Reorganization. Sec. 30. Reorganization of "Full Liability Companies" as "Limited Liability Companies." Sec. 1. Object — The object of this analysis is to give a summary of the Act of the General Assembly, known as the " Business Act," for the benefit of non- professional readers. 2 ANALYSIS OF BUSINESS ACT. Sec. 2. Scope of Act. — It is important to remember the fact that the law of 1875, e. 611, applies ojily to corporations organized under it and the acts amend- atory thereto, and that between it and the law of 1848, c. 40, known as the "Manufacturing Act," there is no conflict ; on the contrary, many of the provisions of the Business Act are derived from the Manufacturing Act, and decisions under the latter are equally applicable to the provisions of the former. 1 The language of many of the sections is substantially the game in each act, and their re-enactment in the latter statute is an adoption by the Legislature of the construction previously put' upon them by courts under the former act.^ The Business Act is of very wide application, and under it a corporation may be formed for carrying^ on any lawful business, except those businesses which are speoificaiUy excepted in section one of the act.^ None of the general acts for the formation of corporations, existing at the time this act was passed, are repealed ; and all corporations falling within the scope of those general acts of incorporation, as well as those formed under the Business Act, may now organize under either act. And where such companies have or may hereafter incorporate under any general act of incorporation other than the Business Act, they may thereafter organize under the latter in^jfihe manner pointed out by said act.* Sec. 3. Preliminary Certificate — The Business Act 1 See Richards v. Crocker, 19 Abb. 56 N. T. 466 (1874) ; Richards v. (N. T.) N. C. 73 (1887); Richards v. Crocker, 19 Abb. (N. T.) X. C. 73 Kinsley, 12 N. Y. St. Rep. 128, 139 (1887.) (1887.) 8 Post, § 31. 2 People ex rel Outwater v. Green, * L. 1875, c. 611, § 32; post, § 105, CERTIFICATE — LIABILITY — LOCATIOlir. 8 requires^ the filing of a preliminary certificate, which must be signed by at least five persons, and acknowl- edged by each, a majority of whom must be citizens and residents of this state. This preliminary certi- ficate should among other things: 1 State as fully as possible the exact object and nature of the business to be carried on; 2 The amount of capital stock, and the par value of the shares; and, 3 Should fix the duration of the company, which in no instance can exceed fifty years.^ The certificate need not, and in fact should not, state any particular day or date upon which the corporation will commence, because the full incor- poration is not perfected until the certificate of incorporation is filed and recorded as required by tho act, and a license issued by the Secretary of State.^ Sec. 4. Same— "Full Liability" and "Limited Liabil- ity" Companies — The act providing for both " full lia- bility companies " and " limited liability companies," the preliminary certificate must show to which class the proposed corporation will belong ; and when it belongs to the class of limited liability companies the word " limited " must in all cases form the last word of the corporate neme.* Sec. 5. Same— Location of Business and Principal Office.— The act requires * that the preliminary certifi- * li. 1875, c. 611, § 3; post, § 33. situated. The extended term, how- * Where the term of the corporate ever, together with the original term, existence is fixed for a leas period must not exceed the prescribed limit than fifty years, it may be extended of fifty years. See post, § 73. by making, filing, and recording the ' L. 1875, c. 611, § 7; post, § 45. certificate required by section twenty- * L. 1875, c. 611, § 35; post, § 120, nine of the Busiiiess Act in the 121, 122. offices of secretary of state, and clerk *L. 1876, c. 611, § 3, subds. 2 and 5; of the coimty, where the principal post, § 41. Inisiness office of the corporation is 4 LOCATION — BUSINESS-OFFICE — CHANGE. cate shall set forth, not only the object for which the company is formed, but also the " locality of its business," and subdivision five of the same sec- tion, requires such certificate to set forth the " loca- tion of the principal business oflSce." This would seem to indicate that the preliminary certificate should state both the point at which the business is carried on, and the point at which the principal business oflSce is located.^ Thus, where a corpora- tion is formed for the purpose of manufacturing caskets, or other articles, in Monroe county, and has its business oflSce in New York City, the preliminary certificate will be required by subdivision two, to set out the fact that the industry is to be car- ried on inMonroe county, and by subdivision five, to state that the principal business oflSce is to be located in New York City. Sec. 6. Same— Change of Principal Business Oiiice.— Any corporation may change its pi^incipal business oflSce at any time by filing and recording, in the ofiices of the secretary of state, and of the clerk of the county in which the principal business oflSce is located, the certificate provided for in section thirty- one of the business act.'' Sec. 7. Corporate Name. — Care should be exercised in the selection of a corporate name, because no cor- poration can be formed under the provisions of this act, witlj a name the same as or closely resembling that of a corporation already existing in the state. ^ A list of the companies formed under this act is 1 L. 1875, c. 611, § 3, subd. 5. «L. 1857, c. 611, § 4; post, § 42. ^Post, §106. CAPITAL STOCK — INCREASE. 5 required to be published in the Session Laws of each year.^ Sec. 8. Capital Stock. — The capital stock of any company organized under this act, cannot in any instance exceed the sum of five millions, and must be divided into shares, the par value of which must be from ten to one hundred dollars.^ In the case of limited liability companies, the entire amount of the capital stock is required to be paid in within one year from the 15th of June, 1889 ;^ but no such provision is found in relation to the time when the capital stock of full liability com- panies shall be paid in. Stock can be issued only for money paid, labor performed, or property received for corporate use.* Sec. 9. Same— Increase of Stock. — Under section eleven of the Business Act,^ at the time of filing its preliminary certificate the corporation can fix its capital stock at any amount, not exceeding five million dollars ; but it is thought that in case of an increase of stock after the corporation is formed, under section fifteen of the sameact.the whole capital stock, when increased, cannot exceed two million dollars.^ Sec. 10. Same— Statement of Increase.— In the case of an increase of the capital stock of a corporation, a statement of such increase is required to be filed in the ofiices of the secretary of state, and of the clerk of the county in which the principal business office of the company is situated, within ten days after such action is taken^. iPosi, §47. 6 Post, §55. "L. 1875, c. 611, § 11; post, § 51. ' L. 1875, c. 611, § 15; as amended »L. 1889, c. 519, § 1. by L. 1884, c. 397, §§ 1, 2 & 3; post, * Post, §54. §§56, 57, & 58. 6 As amended by L. 1883, c. 2, § 1: post, § 51, 6 CERTIFICATE OF STOCK — POWERS. Sec. 11. Same— Dimimition — Since the passage of the act of May 15, 1878, section fifteen of the original act no longer applies to proceedings to reduce the capital stock of incorporated companies ; and pro- ceedings for such reduction must be taken under chapter 264 of the laws of 1878.i Sec, 12. Certificates of Stock — Certificates of stock are required to be signed by the president and treas- urer, and sealed with the corporate seal, and may be transferred at the pleasure of the holder, either in person, or by attorney, except in those cases where the holder of the certificate is indebted to the corporation, in which case there can be no transfer without the board of directors shall consent thereto.^ Sec. 13. Powers and Privileges — The Business Act confers upon all corporations formed under it the general power's specified in section two of that act^ and also authorizes them, 1. To issue bon,ds to the value of one half of the corporate property.* 2. To change the place of the general business office of the company.^ 3. To increase or reduce their capital stock,® and 4. To extend the period of their corporate exist- ence.'^ But the place of business of the company cannot be changed, or the duration of the corporate existence 1 Post, §§ 55, 55a-55ifc. ^Post, § 106. " Post, % 52. 'Post, §55. »Pos«, §32. ■'Post, § 73. * Post, §53. MEETING OF SUBSCKIBEES — BY-LAWS. 7 extended, unless upon the vote of two-thirds of all the stockholders. Sec. 14. Book for Subscriptions.,— Upon the issuing by the secretary of state of a license, empowering those making a certificate as commissioners to open books for subscription to the capital stock to the pro- posed company, such persons shall proceed to open books for subscriptions.^ These books should be ruled in columns for the names of the subscribers, dates of their subscriptions, the number of shares taken by each, their respective place of residence, and the payment of the ten per cent, of the par value of the stock subscribed for by the stockholders. Sec. 15. Meeting of Subscribers — Adoption of By-Laws. — ^Where the commissioners empowered to open books for subscription have received subscriptions of fully one-half of the capital stock, together with the payment of the ten per cent, in cash provided for, they are required to call a meeting of the subscribers, for the purpose of adopting by-laws for the government of such corporation and electing directors thereof.^ The by-laws thus adopted must fix the number of directors, not less than five nor more than thirteen, and otherwise make all provi- sions for the general government of the corporation in accordance with the requirements of section six of the original act.^ These by-laws may be amended from time to time, but no change in them can take effect until after a copy of the by-laws, as amended, is filed, as provided for in section seven.* Sec. 16. Directors— Election of. — The first board of 1 Post, §43. "Post, §44. ^ Post, §§ 43, 44. * Post, § 45. 8 ELECTION — CUMULATIVE VOTING. directors is to be elected at the subscribers' meet- ing ; 1 all subsequent boards are to be elected by the stockholders at the annual meeting.^ The votes for such purpose shall be either in person or by proxy ; it is thought, however, that at the sub- scribers' meeting the subscribers to the capital stock cannot vote by proxy, but must vote in person. To be eligible to the office of director, the person voted for must, at the time of his election, and throughout the term of his office, be the owner of at least five shares of the capital stock in the company.^ Sec. 17. Same— Cumulative Voting. — At the annual election each stockholder is entitled to as many votes as shall equal the number of his shares multi- plied by the number of directors to be elected, and may distribute these votes among those to be voted for, as he may see fit.* This enables any subscriber to cast all his votes for one director, if he so desires. By thus cumulating their votes, minority stock- holders may secure one or more directors in the board, even where the majority of the directors elected are adverse to them. At such annual election executors, administrators, and guardians, may vote stock held by them as such, and stockholders may vote stock which they have pledged. 5 Should* there be a failure to elect directors at an annual meeting, those in office shall hold over until their successors are chosen, and an election may be » See post, § 48. * Post, § 70. 2 Post, §70. « Post, §68. » Post, § 48. DUTIES OF DIRECTORS — RECORD, ETC. 9 had at any time within three months, for the purpose of choosing such successors.^ Sec. 18. Same— Duty of Directors — It is the duty of the directors of a corporation to cause corporate ac- count books to be kept which, together with the stock books, shall be open fco the inspection of the stock- holders at all reasonable times. ^ It is their further duty to look after the interest and property of and manage the business of the corporation. Sec. 19. Same — Resignation of Directors. — It is thought that the directors may resign simultaneously and terminate their connection with the company, in a case where the company is insolvent and there is imminent danger of its assets being fastened by one or two persons in such a manner as to prevent an equitable distribution among all the creditors.^ Sec. 20. Terified Record, Certificate of Incorporation. — "Within ten days after the subscribers' meeting, heretofore spoken of, the commissioners named in the license issued by the state, shall file a verified record of their proceedings sworn to by a majority of the com- missioners, containing a copy of the subscription list, the by-laws adopted and the names of the directors chosen, with the secretary of state, whereupon the secretary of state is required to issue a certificate of incorporation which must be recorded in the oflfice of secretary of state, and filed and recorded in the oflflce of the clerk of the county in which the prin- cipal business office of the corporation is situated.* Sec. 21. Organization Tsliu — At the time of filing the commissioners' report, the corporation is re- 1 Post, § 70. » See post, § 48J. " Pest, §§ 59, 60. * Post, § 45. 10 KEVOKING LICENSE — ANNUAL REPORT. quired to pay to the state treasurer a tax for organi- zation of one-eighth of one per cent, upon the amount of capital stock such corporation is authorized to have.'' Sec. 22. License Revoked. — Where a corporation fails to fully organize, as provided by the act, within one year after the issuing of the license to com- missioners to open books, it is deemed to be revoked, and all proceedings thereunder are then void.^ Sec. 23. Annual Report. — Every corporation is re- quired to make and file annually a report which must be signed by the president and a majority of the directors, and be verified by the oath of the pres- ident or secretary. In this report shall be stated : 1. The amount of capital of the corporation; 2. The proportion actually paid in; 3. The names of its then stockholders; 4. In general terms, the amount and nature of the existing assets and liabilities ; and 5. The dividends, if any, declared since the last report. This report must be filed in the oflBce of the secre- tary of state within twenty days from the first day of January in each year.^ However, where a corpo- ration does business without the United States, its annual report is required to be made within twenty days after the first day of April, which report is to be mada as of the first day of January,* And where a corporation does business without the United States it is still required to make such annual report within twenty days after the first day of January, unless it shall make and fil6 in the office 1 Pos«, §45. » Post, §61. 2 Post, §46. tza. ' FAILUliE TO REPORT — MINORITY REPORT. 11 of the secretary of state, within twenty days after the first day of January in each year, a certificate verified by the president, secretary or treasurer of the com- pany, stating that said corporation is at the date of such certificate doing business without the United States. When it makes and files such certificate, its annual report is to be made within twenty days after the first day of April following. No provision is made either for the filing or record- ing of the annual report in the office of the clerk of the county where the company has its principal busi- ness office, and there is no requirement that it shall be published.^ Sec. 24. Same— Failure to Make Report.^On failure of the directors to make the annual report provided lor, they become jointly and severally liable for the debts of the company then existing, and for all that may be contracted before the record is made.^ Sec. 25. Same.— Minority Eeport. — Any director may guard against the liability resulting from the failure to file the annual report provided for by making and filing on his own behalf at any time within thirty days after the first of January, or the first day of April, as the case may be, a certificate under oath, setting forth the fact that he has endeavored to have such report.made, and alleging neglect or refusal of the directors to make the same. This certificate should be accompanied by a verified report of the facts required to be set forth in the annual report, so far as they are within the knowledge of such iPosf, §61. 2jd, »ld. 12 LIABILITY OP STOCKHOLDEKS. director or are obtainable from sources of informa- tion which are open to him.i Sec." 26. liability of Stockliolders— Full Liability Companies.— In full liability companies the stockhold- ers are severally individually liable for all debts and liabilities of the company .^ This liability of stock- holders is qualified by section twenty-five of the original act,^ which provides that no stockholder shall be personally liable. 1. For the payment of any debt not to be paid within two years from the time it is contracted, 2. Nor unless an action for its collection is brought within two years from the time it becomes due; and, 3. In cases where the party sought to be charged has ceased to be a stockholder, an action seeking to hold him liable as such, must be brought within two years from the time when he ceased to be a stockholder. Sec. 27. Same.— Limited Liability Company The stockholders of limited liability companies are sever- ally individually liable to an amount equal to the amount of stock held by them respectively, for all debts and contracts made by the company until the whole amount of the capital stock fixed and limited by such company has been paid in, and a certificate of payment ^f capital stock made and recorded.^ By the act of the General Assembly of 1889, all capital stock of limited liability companies is required to be paid in within one year from June 15, 1889.* Within thirty days from the payment of the last 1 Post, §120. 'PosS, §121. 2 Post, § 69. *L. 1889, c. 519, § 1. EEOEGAIJIZATION — REQUISITES. 13 installment of the capital stock, the directors are required to make and file a certificate of such payment and record the same in the ofiice of the secretary of state, and in the office of the clerk of the county in which the principal business office of such corpora- tion is situated.^ Sec. 28. Reorganization. —Any corporation except those prohibited in section one of the original act ^ heretofore or hereafter organized under the general laws of this state, may reorganize under this act. Since the amendment of 1880, existing corporations incorporated by special charter prior to June 21,1875, can no longer be reorganized under section thirty- two of the act as it originally stood.* In order to secure a reorganization, the following must be observed : 1. There must be filed, a certificate reciting the original incorporation of the company, and under what general act the same was entered. 2. The certificate must state the term of the corporate existence of such company. 3. It must contain a notice of the meeting of the stockholders, signed by a majority of the directors, and in order that it may clearly appear that this has been done, the certificate should state the number 'Of directors of the original company. 4. The certificate should also set forth in what paper and for what length of time the notice was published. 5. The certificate should show that the paper con- taining the notice was, on a designated day, mailed 1 See post, § 121. « Post, § 107. ^ Ante, % 2; post, § 31. *Id. 14 CEETIFICATB OP REOEGANIZATION. to the last address of each stockholder, postage pre- paid. The fact of the printing of the notice may be shown by the affidavit of the printer as to its publi- cation, and by the affidavit of the party mailing the notice as to such mailing, which aflSdavits must be annexed to the certificate. 6. The certificate should also show that at the meeting of stockholders held in pursuance of such notice, one of the directors was chosen to preside. 7. Also that a suitable person was chosen as secretary, 8. The certificate should contain a statement as to the number of shares in the stock of the original company, and the number of shares of stock repre- sented at said meeting, together with a statement of the vote upon the question of reorganization under this act, and should show that votes representing a majority of all the stock of the company were given in favor of such reorganization. 9. The certificate must set forth fully all that is required by section thirty- two of the original act. 10. The certificate, together with the by-laws, must be filed in the office of the secretary of state. ^ Sec. 39. Certificate of Reorganization. — After the things set out in the preceding section have been done, and a certificate of the stockholders has been filed as required, the secretary of state issues to the directors»of the old company a certificate of reorgan- ization, which certificate is to be recorded in the office of the secretary of state and a copy thereof to be filed in the office of the clerk of the county in which the principal business office of the corporation ia 1 Post, §§ 107-111. KEOKGAXIZIXG FULL LIABILITY COMPANIES. 15 situated, within ten days from the issuing thereof with the secretary of state.^ Sec. 30. Beorganizatiou of " Full Liability Compa- nies" as " Limited Liability Companies." — By the supple- mentary act of 1885 " full liability companies" may, in a manner similar to that already set out,^ organize as limited liability companies.^ A certificate of the proceedings, together with a copy of the by-laws of the reorganized company, must be filed with the secretary of state and in the office of the clerk of the county in which the principal business office of the organized company is situated. 1 See post, § 105 et seq, » L. 1885, c, 535, § 1. 2 -Ante, §28. «Post,§ 107. 16 BtXSINBSS ACT. CHAPTER II. BUSINESS ACT. I'OEMATION OF CORPOEATIONS — GENERAL POWERS — NATU- RAL GAS COMPANIES — CERTIFICATE OF INCORPORATION — ISSUANCE OF LICENSE. Sec. 31. Formation of Corporations— For What Purpose. Sec. 31a. Right to Form Corporations— Method of Formation. Sec. 311d. Same— When goes into Effect. Sec. 31c. The Law Governing. Sec. 31d. Same — Transfer by Married Women. Sec. 31e. Same — Liability of Stockholder. Sec. 3 If. Fifth Avenue Transportation Co., Limited. Sec. 32. General Powers Conferred on Corporations. Sec. 32a. Patrons of Husbandry— Sovereigns of Industry. Sec. 32b. Powers of Corporations. Sec. 32c. Same — Powers Limited to Terms in Grant. Sec. 32d. Same — Contract Ultra Vires. Sec. 32e. Same — Plea of Ultra Vires. Sec. 32f. Same — Foreign Corporations. Sec. 32g. Same— Power to Divide Franchise. Sec. 32h. Same— Power to Affix Seal of Corporation. Sec. 32i. Same — Mode of Exercising Power. Sec. 32j. Same— Power to Employ Women and Children. Sec. 32k. Same — Power to Build Private Railroad. Sec. 321. Same — Power to Purchase Land. Sec. 32m. Same — Power to Hold Lands in Foreign State, and Invest in Stock of Foreign Companies. Sec. 32n. Same— Power to Sell Entire Property. Sec. 3to. Same — Power to Sell and Convey Real Estate. Sec. 32p. Same — Conveyance by Corporation — Who may Execute. Sec. 32q. Same — Form of Deed. Sec. 32r. Same — Addition of Descriptive Title. Sec. 32s. Same — Form of Signature. Sec. 32t. Same — Power to Lease Real Estate. Sec. 32u. Same— Suit on Lease— Pleadings — Res Adjudicata, Sec. 32v. Same — ^Power to Form Combinations — Trusts. Sec. 32w. Same — Implied Powers. BUSINESS ACT. 17 Sec. 32x. Contracts — Implied Contracts. Sec. 32y. Same — Contracts by Officers. Sec. 32z. Same — Duties Regulated by Charter or By-Laws— Kotice. Sec. 32ai. Same — Contracts by President. Sec. 32b'. Same— For Attorney's Services. Sec. 32c1. Same — Contract by Treasurer. Sec. 32d.\ Same — Foreign Corporation — Power 5f Treasurer to bind Company. Sec. 32ei. Same — Supplies Furnished Superintendent. Sec. 32fi. Dealings of Corporation— Presumption as to Validity. Sec. 32gi. Same— Execution of Promissory Notes. Sec. 32h'. Same — Insolvent Corporation — Judgment Note. Sec. 3211. Same— Execution and Endorsement of Corporate Paper — Proper Method of. Sec. 32ji. Same— Notes Executed by President. Sec. 32]ii. Same— Execution by Secretary, Treasurer, etc. Sec. 3211. Same— Execution by Agent — Personal Liability. Sec. 32ml. Same— Use of the Word "As." Sec. 32ni. Same— Parol Evidence. Sec. .32o1. Agent of corporation. Sec. 32pi. Same — Notice to Agent. Sec. 32qi. Same— Agent or Officer of one Coj^joration also Agent or Officer of Another Corporation or Person. Sec. 32ri. Same — Presumption of Communication by Agent. Sec. 32s1. Same — Notice to President. Sec. 32ti. Same— Notice to Directors. Sec. 32ui. Same — Notice to Stockholders. Sec. 32vi- Same — Ratification of Employment — Formal Meeting not Necessary. Sec. 32w1. Same— Evidence of. Sec. 32x1. Same — Delegation of Power. Sec. 32yi. Same — Statutory Agents — Implied Prohibition. Sec. 32z1. Same — Notice as to Powers. Sec. 323,2. Duty of Company as to Agents. Sec. 32b2. Same— Apparent Authority. Sec. 32c''. Same— Private Instructions. Sbc. 32d2. Acts and Contracts of Officers and Agents. Sec. 32e2. Same— Ratification. Sec. 32f2. Same— Previous Assent. Sec. 32g2. Same— Ratification by Acquiescence. • Sec. 32h2. Same— Estoppel. Sec. 3212. Agents - Frauds and Misrepresentations. Sec. 33. Hot Water, Hot Air, Steam-Heating Companies. Sec. 33a. Steam-Heating Companies— Statutes. Sec. 34. Natural Gas Companies. Sec. 35. Same— Power to Dig Trenches and Lay Pipes. Sec. 36. Same— Sanction by City Authorities. Sec. 37. Same— Surveys— Compensation. Sec. 38. Same— Map of Route— Signing and Filing. 2 18 FOJBMATION OF COBPOBATIONS. Sec. 39. Same— Commissioners to Assess Damages— Report. Sec. 40. Same— Confirmation of Report— Deposit by Corporation, Sec. 41. Certificate of Incorporation— Application for. Sec. 41a. Infringement of Corporate Name. Sec. 41b. Change of Corporate Name— Corporations may Apply to Su- preme Court for. ' Sec. 41c. Same— Petition and Notice of Application. Sec. 41d. Same— Power of Court to Order a Change of Name. Sec. 41e. Same— When Change of Name to Take Effect. Sec. 41f . Same— Change not to Affect Pending Suits, Rights or Liabili- ties. Sec. 41g. Same — Discretion of Court. Sec. 41h. Capital Stock. Sec. 41i. Shares of Stock. Sec. 41j. Defective Organizations. Sec. 42. License — Secretary of State to Issue. Sec. 3l! Formation of Corporations— For what pur- pose. — Corporations may be organized under the pro- visions of this act for the carrying on of any lawful business except banking, insurance, the construction and operation of railroads, or aiding in the construc- tion thereof, and the business of savings banks, trust companies or corporations intended to derive profit from the loan or use of money, or safe deposit companies, including the renting of safes in burglar and fire-proof vaults. ^ Sec. 31 a. Right to form Corporation — Method of Formation. — The right to form a corporation is a special privilege con- ferred only by the legislature. The method of the formation of a corporation and the validity of the membership contract always depends upon the act of the legislature granting the privilege to organize.^ In those cases where the act of the legisfatij^'e authorizing the formation of corporations requires the payment or deposit of a certain amount upon each share subscribed, the actual payment of the deposit is essential to iL. 1S75 c. 611, § 1 ; 3 R. S., 8th ford, 32 Vt. 35 (1859); Paul v. Vir- ed., p. 1978. gmia, 75 U. S. (8 Wall.) 181 (1868); ^See People v. Utioa Ins. Co., 15 bk. 19 L. ed. 357; Bank of Augusta Johns. (N. T.) 358, 386 (1818); v. Earle, 38 U. S. (13 Pet.) 595 (1839) ; Thompson v. People, 23 Weud. (N. bk. 10 L. ed. 311. Y.) 537, 579 (1840); State v. Brad- LAW GOVERNING. 19 •validity of the subscription.^ However, tlie payment of the deposit being for the benefit of the company, and not for the benefit of the public or creditors of the company, there are some cases holding that it may be waived, by the company .^ Sec. 31b. Same— When goes into effect.— Where the statute under which a corporation is organized prohibits the organiza- tion until the capital stouK has all been subscribed, the in- tention to form such corporation goes into effect when the stock is subscribed, without any formal act of the corpora- tion.3 Sec. 31c. Same— The Law Governing.— The law governing questions relating to shares of stock of a corporation, is the law of the state where it is created.* The transfer of stock must be made in accordance with the requirements of the law of the state of the corporation, and all legal proceedings against the stock must be had at the domicile of the cor- 1 See Lake Ontario, A. & N. T. R. Co. V. Mason, 16 N. Y. 451 (1857); Beach v. Smith, 28 Barb. (N. T.) 254 (1858); Ogdensburg R. & C. R. Co. V. Frost, 21 Barb. (N. Y.)542 (1856); Excelsior Grain Binding Co. v. Stay- ner, 61 How. (N. T.) Pr. 456 (1881); Ogdensburg C. & R. R. Co. v. Wol- ley, 34 How. (N. Y.) Pr. 65 (1864); Highland Turnpike Co. v. McKean, 11 Johns. (N. Y.) 98 (1814); Goshen Turnpike Co. v. Hurtin, 9 Johns. (N. Y.) 218 (1812); People v. Stock- ton & V. R. Co., 45 Cal. .306 (1873); Wood V. Coosa & O. R. Co., 32 Ga. 273 (1861); Ryder v. Alton & S. R. Co. 13 111. 516 (1851); Taggart V. Western Md. R. Co., 24 Md. 588 (1866) ; Fisher v. Mississippi & T. R. Co., 32 Miss. 359 (1856) ; Boyd v. Peack B. R. Co., 90 Pa. St. 169 (1879); State Ins. Co. v. Redmond, 1 McCreary, C. C. 308 (1880.) ''Ogdensburg R. & C R. Co. v. Frost, 21 Barb. (N. Y.) 542 (1856); Ogdensburg C. & R. R. v. Wolley, 34 How. (N. Y.) Pr. 65 (1864); Mit- chell V. Rome R. Co., 17 Ga. 574 (1855) ; Illinois R. Co. v, Zlmmer, 20 111. 656 (1858); Home S. Ins. Co. V. Sherwood, 72 Mo. 461 (1880) ; Piscataqua Ferry Co. v. Jones, 39 N. H. 491 (1859) ; Henry v. "Vermillion & A. R. Co., 17 Ohio 191 (1848); Com. V. Westchester R. Co., 3 Grant's Cas. (Pa.) 200 (1855). 3 Phcenix W. Co. v. Badge, 67 N. Y. 298 (1876) ; Burr v. Wilcox, 22 N. Y. 551 (1860) ; Lake Ont. A. & N". Y. R. Co. V. Mason, 16 N". Y. 451 (1857) ; jSTorthern R. Co. v. Miller, 10 Barb. (K Y.) 260 (1851); Spear v. Crawford, 14. Wend. (N". Y.) 20 (1835) Beckett v. Houston, 32 Ind. 398 (1869) ; Chester Glass Co. v. Dewey, 16 Mass. 94 (1819); Pacific R. Co. V. Hughes, 22 Mo. 291 (1855) : New- Hampshire C. R. Co. V. Johnson, 10 N. H. 390 (1855) ; Haynes v. Brown, 36 N. H. 545 (1858.) * See Story's Conf. of L. (7th ed.), §383. 20 LIABILITY OF STOCKHOLDER. poration.^ But contracts to transfer stock are valid, if made, according to the law of the domicile of the owner, or the law of the place where the contract is entered into, unless such contracts are specially prohibited by the law of the state creating the corporation. ^ ' Sec. 31d. Same— Transfer by Married Woman.— It seems, however, that a transfer of stock made by a married woman is valid and effectual if made in accordance with the law of her domicile, without reference to the law governing married women's rights in the state where the corporation exists.^ ^ec. 31e. Same— Liability of Stockholder.— The extent of the liability of a stockholder on his stbck is determined by the law of the domicil of the corporation, but the law of the place where the suit was brought determines the method of enforcing that liability.* Sec. 31f. Fifth Avenue Transportation Co. (Limited).^The Fifth Avenue Transportation Co. (Limited), is authorized, upon certain conditions, to run its stages for the transporta- tion of passengers, through certain streets in the city of New York.5 Sec. 33. General Power Conferred on Companies - "When so organized, every such corporation shall possess the following general powers : igee Richmondville Manuf. Co., ^dq^ v. Gould & C. S. M. Co., .31 V. Prall, 9 Conn. 487 (1833); Jfoyes Cal. 629 (1867) ; Hill v. Pine River V. Spatilding, 27 Vt. 420 (1853); Bank, 45 N. H. 300 (1864.) See Boss Black V. Zacharie, 44 U. S. (3 How.) v. Southwestern R. Co., 53 Ga. 514 483 (1845) ; bk. 11 L. ed. 690. See also (1874). Sibley v. Quinsigamond l^at. Bank, * New Haven Horse Nail Co. v, 133 Mass. 515 (1882) ; Dickinson v. Linden Spring Co., 142 Mass. 349 Central Nat. Bank, 129 Mass. 279 (1886). See Hutchings v. New Eng- (1880); s«c. 37 Am. Rep. 351; Scott land Coal Mining Co., 86 Mass. (4 v. Pequonnock Nat. Bank, 15 Fed. Allen) 580 (1862) ; Blackstone Manuf. "Rep. 494 (1883); Continental Nat. Co. v. Blackstone, 79 Mass. (13 Gray) Bank v. Eliot Nat. Bank, 12 JRep. 488 (1859) ; Penobscot & K. R. Co. v. 35 ; Compare State v. First Nat. Bartlett, 78 Mass. (12 Gray) 244 Bank of Jeffersonville, 89 Ind. 302 (1858); s. c. 71 Am. Dec. 753; Jones (1883). V. Sisson, 72 Mass. (6 Gray) 288, ' See Story on Confl. of L. (7tli ed.) (1856). § 383; 2 Kent Comm., Lecture 45; 6 l. i889, c. 182 ; amending 1886, 1 Chitt. on Comm. & Manuf. 556, c. 536. 558, 569. GENERAL POWERS. 21 1. To have succession by its corporate name for the period limited in its certificate of incorporation. 2. To sue and be sued ; to complain and defend in any court. 3. To make and use a common seal and alter the same at pleasure. 4. To appoint such subordinate oflBcers and agents as the business of the corporation shall require, and its by-laws shall ptovide for. 5. To make by-laws for the management of its property, the regulation of its affairs, for the transfer of its stock and defining the duties of its officers, and from time to time to amend the same. 6. To purchase, hold and possess so much real and personal estate as shall be necessary for the transac- tion of its business, and sell and convey the same when not required for the uses of the corporation ; provided, however, that all real estate acquired in satisfaction of any liability or indebtedness, unless the same be necessary and suitable for the uses and business of the corporation, shall be sold within three years after becoming the property of such corporation, but such time may be extended to a period not exceeding five years in all, by an order of the Supreme Court made in the district in which is located the principal business office of such corporation, on the verified petition of such corporation, stating the reason for such extension. ^ Sec. 32a. Patrons of Hus'bandry— Sovereigns of Industry.— The act of 1878 supplementary to chapter 611 of the laws of 1875 entitled " an act to provide for the organization and reg- ulation of certain business corporations," provides that it shall be lawful for any corporation formed under chapter six iL. 1875, c. 611, § 2; 3 R. S., 8th ed., p. 1979; 1 R. S. Codes & L.. p. 368, § 2. 22 POWEES AT COMMON LAW. hundred eleven Laws of one thousand eight hundred and seventy-five, by either Patrons of Husbandry or Sovereigns of Industry, or jointly by both, to fix in their by-laws or constitution the following provisions : 1. The amount of each share, which shall be not less than five dollars. 2. The number of shares that shall be held by each director, ■which shall not be less than one full share.^ 3. The basis of voting at all meetings of associations for directors thereof, giving at least one vote to each member having paid for one full share. i Sec. 32b. Powers of corporations. — At common law there are certain powers incident to corporations, and these, in the absence of special restraints by statute or in their charters, they are presumed to possess. These are such powers as are necessary and proper to enable the corporation to accomplish the purposes of its creation, and are deemed to be inseparable from every corporation, notwithstanding the fact they they are not expressly conferred by tlie chai-ter, or act of incorpo- ration.2 The powers incident at common law are restricted by the nature and object of each corporate body.^ But no powers will be implied except those which are incidental to the very existence of the corporation, or so necessary to the enjoyment of a special grant, that without the implied power the right would fail.* Within the scope of their authority, corporations have all the powers of ordinary persons ; ^ but the scope of their authority is always limited by the act creating them, and they can rightfully exercise only such powers as are expressly 1 L. 1878, c. 334, § 1. 280 (1844); Hood v. New York & K. . 2 Hood V. New York & N. H. E. H. E. Co., 22 Conn. 1 (1852). Co., 22 (%nn. 1 (1852); Eochester * Wellersburg & W. N. Plankroad Ins. Co. V. Martin, 13 Minn. 59 Co. v. Young, 12 Md. 476 (1858); (1868); G-aines v. Coates, 51 Miss. Gaines v. Coates, 51 Miss. .335 (1875); 35 (1875); Downing v. Mt. Wash- Linton v. Sharpsburg Bridge Co., 1 ingtonE. Co., 40 N. H. 230 (1860); Grant Cas. (Pa.) 414 (1856); Ten- White's Bank v. Toledo Ins. Co., 12 nessee & A. R. Co. v. Adams, 3 Head Ohio St. 601 (1861). (Tenn.) 596 (1859). 8 Buffet V. Troy & B. R. Co., 40 ^ Derringer's Adm'r v. Derringer's N. Y. 168, 176 (1869); Barry v. Mer- Adm'r, 5 Houst. (Del.) 416 (1878); chants' Ex. Co., 1 Sandf. Oh. (N. Y.) s. c. 1 Am. St. Rep. 150. INCIDENTAL POWEKS. 23 granted, together with such incidental powers as are neces- sary to carry into effect those specifically conferred ; ^ and 1 See Lute Coeulx v. Buffalo, 33 IS". Y. 333 (1865); Brady v. New York, 20 N. Y. 312 (1860); Auburn & C. P. Road V. Douglass, 9 N. Y. 444 (1854); Halstead v. Mayor of New York, 3 N. Y. 430 (1850) ; Boyce V. City ef St. Louis, 29 Barb. (N. Y.) 650 (1859); s. c. 18 How. (N. Y.) Pr. 125; Camden & A. R. Co. v. Remer, 4 Barb. (N. Y.) 180 (1848); New York Firemen Ins. Co. v. Ely, 2 Cow. (N. Y.) 678 (1824); New York Firemen Ins. Co. v. Sturges, 2 Cow. (N. Y.) 664 (182+) ; Utica Ins. Co. v. Scott, 19 Johns. (N. Y.) 1 (1821); People V. Utica Ins. Co., 15 Johns. (N. Y.) 358(1818); Life & Fire Ins. Co. V. Mechanic Fire Ins. Co., 7 Wend. (N. Y.) 31 (1831); Beach v. Fulton Bank, 3 Wend. 583 (1829); North River Ins. Co. v. Lawrence, 3 Wend. (N. Y.) 482 (1830); Mont- gomery V. Montgomery & W. PI. Boad Co., 31 Ala. 76 (1857) ; Vandall V. South San Francisco Dock Co.,, 40 Cal. 83 (1870) ; Occum Co. v. Sprague Mfg. Co., 34 Conn. 541 (186S); New London v. Brainard, 22 Conn. 552 ■(18-53); Berlin v. New Britain, 9 ■Conn. 180 (18-32) ; Fuller v. Plainfield Academic School, 6 Conn. 532 (1827) ; Winter v. Muscogee R. Co., 11 Ga. 438 (1852) ; Chicago Gas Light Co. v. People's Gas Light Co., 121 111. 530 (1887); s. c. 2 Am. St. Eep. 124; Balsley v. St. Louis A. & T. H. R. €o., 119 111. 68 (1886); s. c. 59 Am. Rep. 784; Petersburg v. Metzker, 21 111. 205 (1859); Bowling Green & M. R. Co. V. Warren County Court, 10 Bush. (Ky.) 712 (1874); Weckler v. First National Bank, 42 Md. 581 <187o); Pennsylvania D. & M. Nav. Co. V. Dandridge, 8 Gill. & 3. (Md.) 248 (1836) ; Davis v. Old Colony B. Co., 131 Mass. 2.59 (1881); First Parish v. Cole, 20 Mass. (3 Pick.) 232 (1825); Rochester Ins. Co. v. Martin, 13 Minn. 59 (1868); Mobile & O. R. Co. T. Franks, 41 Miss. 511 (1867) ; Abby v. Billups, 35 Miss. 618 (1858); 8. c. 72 Am. Dec. 143; Mat- thews V. Skinker, 62 Mo. 329 (1876); Pacific E. Co. V. Seely, 45 Mo. 220 (1870); Ruggles v. Collier, 43 Mo. 353 (1869) ; Downing v. Mt. Wash- ington R. Co., 40 N. H. 231 (1860); Trustees of South Newmarket Meth. Sem. V. Peaslee, 15 N. H. 3.30 (1844) ; Franklin Bank v. Commercial Bank, 36 Ohio St. 355 (1881); s. c. 38 Am. Eep. 594 ; White's Bank v. Toledo F. & M. Ins. Co., 12 Ohio St. 601 (1861); Straus v. Eagle Ins. Co., 5 Ohio St. 59 (1855); Overmyer v. Williams, 15 Ohio 31 (1846) ; Diligent Fire Co. v. Com., 75 Pa. St. 291 (1874) ; Com. v. Erie & N. E. R. Co., 27 Pa. St. 339 (1856); Pennsylvania R. Co. V. Canal Commissioners, 21 Pa. St. 9 (1852) ; Wolf v. Goddard, 9 Watts (Pa.) 550 (1840) ; Northeastern R. Co. V. Payne,8Rich (S. C.)L.n7 (1855); Elevator Co. v. Memphis & C. R. Co., 85 Tenn. 703 (1887); s. c. 4 Am. St. Rep. 798; Shawmut Bank V. Plattsburgh & M. R. Co., 31 Vt. 491 (1859) ; Thomas v. West Jersey E. Co., 101 U. S. (11 Otto) 71 (1879); bk. 25 L. ed. 250; Huntington v. National Sav. Bk. of D. C, 96 U. S. (6 Otto) 388 (1877) ; bk. 24 L. ed. 777; Runyan v. Coster, 39 U. S. (14 Pet.) 122 (1840); bk. 10 L. ed. 382; Beaty V. Knowler, 29 U. S. (4 Pet.) 152 (1830); bk. 7 L. ed. 813; Dartmouth College V. Woodward, 17 U. S. (4 Wheat.) 518 (1819); bk. 4L. ed. 629; Russell V. Topping, 5 McLean C. C. 194 (1850). 24 USUKPATION OP POWERS — QtTO WAERANTO. where a corporation usurps public franchises or powers which* are not conferred by the charter, quo warranto lies against it for such usurpation.! What is barely implied is thought to be as much granted as what is expressed within the meas- ure of the powers of the corporation ; bCit where powers are enumerated, the enumeration of the powers implies the exclusion of all those not included.^ A contract made by or with a .corporation which is outside- of the pare of its corporate authority, confers no rights, and the making of such contract does not estop the promisor from pleading that the act was ultra vires ^ ; but if the contract be 1 Although it has been held that an estoppel may grow, even under these circumstances, out of a long continued acquiescence in or enjoy- ment of the fruits of the contract. People V. Bank of Hudson, 6 Cow. (N. Y.) 217 (1826); People v. Tibbits, 4 Cow, (N. Y.) 358(1825); People v. Utica Ins. Co., 15 Johns. (N. Y.) .3.58 (1818); People v. Hillsdale & C. Turnpike Co., 2 Johns. (N. Y.) 190 (1807); People V. Bristol & R. Tump. Co., 23 Wend. (N. Y.) 223 (1840); People V. Rensselaer & S. R. Co., 15 Wend. (X. Y.) 113 (18-36); People v. Trustees of Geneva College, 5 Wend. (N. Y.) 211 (1830); Hood v. New York & N. H. R. Co., 22 Conn. 502 ( 1853) ; State v. Cincinnati Gas Co. , 18 Ohio, St. 262 (1868); Hopple v. Brown Twp.. 13 Ohio St. 311 (1862); Goshen Twp. v. Springfield, Mt. V. & P. R. Co., 12 Ohio St. 624 (1861); State V. Hancock Co., 11 Ohio St. 183 (1860) ; State v. ^an Home, 7 Ohio St. 327(1857); Ang. & A. Corp. § 256; Herman on Estoppel 510; High on Extr. Rem. 650. 2 See Chicago Gaslight & Coke Co. V. People's Gaslight & Coke Co., 121 111. 530 (1887); Balsley v. St. Louis A. & T. H. R. Co., 119 111. 68 (1886) ; Franklin Bank v. Commer- cial Bank, 36 Ohio St. 3.d5 (1881); Green Bay & M. R. Co. v. Union Steamboat Co., 107 U. S. (17 Otto> 98 (1882); bk. 27 L. ed. 413; Thomas v. West Jersey R. Co., 101 U. S. (11 Otto) 71 (1879); bk. 25 L. ed. 9o2 ; Korthwestern Fertilizing Co. v. Hyde Park, 97 IT. S. (7 Otto) 659- (187S); bk. 24 L. ed. 1036; St. Clair Co. Turnpike Co. v. Illinois, 96 U. S. (6 Otto) 63 (1877); bk. 24 L. ed. 651; Perrine v. Chesapeake & D. Canal Co., 50 U. S. (9 How.) 184 1850); bk. 13 L. ed. 62; Bank of" Augusta V. Earle, 38 U. S. (13 Pet.). 587(1839); bk. 10 L. ed. 274; Dart- mouth College V. Woodward, 17 U. S. (4 Wheat.) 636 (1819); bk. 4 L. ed. 629. 8 Wilks V. Georgia Pac. R. Co., 79' Ala. 180 (18S5); Westingliouse Ma^ chine Co. v. Wilkinson, 79 Ala. 312 (1885); Sherwood v. Alvis, 83 Ala. 115 (1887); s. c. 3 Am. St. Rep. 695; Grand Lodge of Alabama v. Wad- dill, 36 Ala. 313 (1860); Waddill v. Alabama & T. R. Co., 35 Ala. 323 (1859) City Council v. Montgom- ery & W. Plank Road Co., 31 Ala. 76' (1857) Chambers v. Faulkner, 65 Ala. 448 (1880); Smith v. Alabama. Life Ins. Co., 4 Ala. 558 (1843). POWERS LIMITED TO TEEMS OF GRANT. 25 within its corporate power, the other party is estopped from disputing the regular and complete organization of the corporation. 1 Sec. 32c. Same — Powers limited to terms in grant.— Corpora- tions are always confiiied to the exercise of the powers granted and all such incidental powers as are necessary to carry iiitO' effect those specially conferred, ^ and can do only such acts as its charter, considered in relation to the general law- authorizes it to do, ^ and whatever rights beyond those belonging to natural persons are claimed by a corporation must be either found in its charter or must arise from contract.* Sec. 32d. Same— Contract ultra vires.— A corporation can make no contracts and do no acts except such as are author- ized by its charter or the general statute, and only in such manner as therein authorized.* A distinction, however, is to be applied between contracts made ultra vires which are executory and those which are executed; the latter, as a general rule, are permitted to stand ;^ and an ultra vires contract which has been executed will always be enforced where the corporation has received the benefit thereof.' It is thought that an executory contract idtra vires can be 1 Sherwood v. Alvis, 83 Ala. 115 Co., 43 Ohio St. 31 (1885); Augusta, (1887); s. c. 3 Am. St. Rep. 695; Bk. v. Earle, 38 U. S. (13 Pet,) 519 Lehman v. Warner, 61 Ala. 455 (1839) bk. 10 L. ed. 274. See People (1878). V. Louisville & N. R. Co., 120 111. 48 2 Chicago Gaslight & Coke Co. (1887). V. People's Gaslight & Coke Co., 121 ^ See Parish v. Wheeler, 22 IT. Y. 111. 530 (1887) ; Balsley v. St. Louis 503 (1860) ; Merritt v. Millard, 4 A. & T. H. R. Co., 119 111. 68 (1886); Keyes (N. Y.) 208 (1868). Franklin Bank v. Commercial Bank, ' Bissell v. Michigan S. & T^. I. 36 Ohio St. 355 (1881). E. Co., 22 N. Y. 258 (18(!0) ; Gary v. 8 Ft. Worth Street R. Co. v. Cleveland & T. E. Co., 29 Babr. (N. Rosedale Street R. Co., 68 Tex. 169 Y.) 35 (1859) ; Chapman v. Mai (1887); Gulf C. & S. F. R. Co. v. River & L. E. R. Co., 6 Ohio St. 13T Morris, 67 Tex. 692 (1887). (1856); Zabriskie v. Cleveland C. cfc 1 Shelbyville R. Co. v. Louisville C. R. Co., 64 U. S. (23 How.) 381 C. & L. R. Co., 82 Ky. 541 (1885). (1859); bk. 16 L. ed. 488. 6 Ewing v. Savings Bank & T. 26 POWEES or FOREIGN CORPORATIONS. rendered valid by the acquiescence of all the stockholders of the company .1 Sec. 32e. Same— Plea of ultra vires.— A plea of ultra vires cannot be sustained where the contract has been executed, and where the allowance of such plea will work injury to innocent third persons ; ^ and such plea will not be allowed to prevail where interposed in an action for or against a corporation where justice will not be advanced but a wrong perpetrated.^ Sec. 32f. Same— Powers of foreigcn corporations. — A corpora- tion has no extra territorial life or authority and its existence is recognized in other states and its operations permitted where they do not come in contact with the laws of such other states only on the principle of comity ; * but a ' Cozart V. Georgia R. & B. Co., 54 Ga. 379 (1875) ; Hazlehurst v. Savanah G. & N. A. R. Co., 43 Ga. 13 (1871); Camden & A. K. Co. V. Mays Landing & E. H. C. R. Co., 48 N. J. L. (19 Vr.) 530 (1886); Thomas v. West Jersey R. Co., 101 V. S. (11 Otto) 71 (1879); bk. 2.5 L. ed. 950. See Sherman v. Fitch, 98 Mass. 59 (1867) ; Christian University Y. Jordan, 29 Mo. 68 (1859) ; Hilliard T. Goold, 34 N. H. 230 (1856) ; Kel- sey V. National Bk., 69 Pa. St. 426 (1871); Creswell V. Lanahan, 101 U. S. (11 Otto) 347 (1879); bit. 25 L. ed. 853. 2 Camden & A. R. Co. v. Mays Landing & E. H. C. R. Co., 48 N. J. L. (19 Vr.) 530 (1886). See Wood- ruff V. Erie R. Co., 93 N. Y. 609 (1883) Kent v.^uicl£silver Min. Co., 78 N. T. 159 (1879); Whitney Arms Co. V. Barlow, 63 N. Y. 62 (1875); , Bissell V. Michigan S. & N. I. R. Co., 22 N. Y. 258(1860); Parish v. Wheeler, 22 N. Y. 494 (1860) ; Terry V. Eagle Lock Co., 47 Conn. 141 (1879); Bradley v. Ballard, 55 111. 413 (1870) ; Darst v. Gale, 83 111., 137 (1876); Baltimore & P. Steamboat Co. V. McCutcheon, 13 Pa. St. 13 (1850); Ashbury R. C. & I. Co. v. Riohe, L. R. 7 H. L. 653 (1875); Spackman v. Evans, L. R. 3 H. L. 171 (1868); Evans V. Smallcombe, L. R. 3 H. L. 249 (1868). 8 Whitney Arms Co. v. Barlow, 63 N. Y. 62 (1875); Chicago & A. R. Co. V. Derkes, 103 Ind. 520 (1885) ; Southern Express Co. v. Western N. C. R. Co., 99 U. S. (9 Otto) 191 (1878), bk. 25 L. ed. 319; Ohio & M. R. Co. V. McCarthy, 90 U.S. (6 Otto) 258 (1877); bk. 24 L. ed. 693; Brice, Ultra Vires, 729, note ; Pierce on Railroads, 515. * Jessup V. Carnegie, 80 N. Y. 441 (1880); Merrick v. Van Sant- voord, 34 N. Y. 208 (1866); Bard v. Poole, 12 N. Y. 495 (1855); Mumford V. Am. L. Ins. Co., 4 N. Y. 463 (1851) ; Silver Lake Bk. v. North, 4 Johns. Ch. (N. Y.) 370 (1820) ; Stoney v. Am. L. Ins. Co., 11 Paige Ch. (ISr. Y.) 535 (1845); Lathrop v. Commercial Bank, 8 Dana (Ky. ) 114 (1839); Lumbardv. Aldrich, 8 N. H. 31 (1835); National Trust Co. v. POWER TO DIVIDE FRANCHISE. 27 corporation cannot exercise greater power elsewhere than is allowed to it by the law of the state where it is created.^ It is a general rule in all the states that foreign corpora- tions may be permitted to sue and be sued in the courts of a state other than the one creating such corporation, with the conditions imposed as to costs, service of process, and the like, in the state where suit is brought.^ Sec. 32g. Same — Power to divide franchise.— It is thought that where by its charter a corporation assumes and is charged with certain duties it cannot as a whole escape responsibility for the proper discharge o£ those duties, or of any of them, by the division of its franchise.^ Sec. 32h. Same — Power to affix seal of corporation. — The seal of a corporation cannot be properly affixed to an Murphey, 30 K J. Eq. (3 Stew.) 408 ^1879); Christian Union v. Yount, 101 U. S. (11 Otto) 352 (1879) ; bk. 25 L. ed. 888: Cowellv. Springs Co., 100 U. S. (10 Otto) 55 (1876); bk. 25 L. ed. 547; Bank of Augusta v. Earle, 38 U. S. (13 Pet.) 519 (1839); bk. 10 L. ed. 274; Bateman v. Ser- vice, L. R. 6 App. Cas. 386 (1881). See Kennebec Co. v. Augusta Ins. Co., 72 Mass. (6 Gray) 204 (1856); Williams v. Creswell, 51 Miss. 817 <1876) ; Bank of Cincinnati v. Hall, 35 Ohio St. 158 (1878); Newburg Petroleum Co. v. Weare, 27 Ohio St. 543 (1875); Runyan V. Coster, 39 U. S. (14 Pet.) 122 (1840); bk. 10 L. ed. 382; Howe Machine Co. v. Walker, 35 U. C. Q. B. 37 (1874). 1 Kerr v. Dougherty, 79 >r. T. 327 (1880); Starkweather v. Bible Society, 72 111. 50 (1874); s. c. 22 Am. Rep. 133; Thompson v. Waters, 25 Mich. 214 (1872). 2 Mutual Benefit L. Ins. Co. v. Davis, 12 N. T. 569(1855); Yersse & B. Paper Works v. Willett, 14 Abb. (N. T.)Pr. 119(1862); Eliza- hethport Manuf. Co. v. Campbell, 13 Abb. 1^. Y.) Pr. 86 (1861); Fisk v. Chicago, K. I. & P. R. Co., 4 Abb. (N. Y.) Pr. N. S. 378 (1868); New York Floating Derrick Co. v. New Jersey Oil Co., 3 Uuer (N. Y.) 648 (1854); Bank of Commerce v. Rut- land & W. R. Co., 10 How. (jST. Y.) Pr. 1 (1854) ; Silver Lake Bank v. North, 4 Johns. Ch. (N. Y.) 370 (1820) ; Cunningham v. Pell, 5 Paige Ch. (N. Y.) 607 (1836) ; American Ins. Co. v. Owen, 81 Mass. (15 Gray) 493 (1860); British Am. Land Co. v. Ames, 47 Mass. (6 Mete.) 391 (184.'!); Runyan V. Coster, 39 U, S. (14 Pet.) 122 (1840) ; bk. 10 L. ed. 382 ; Bank of Augusta V. Earle, 38 U. S. (13 Pet.) 519, 588, 589 (1839); bk. 10 L. ed. 274; Society, &c., v. Wheeler, 2 Gall. C. C. 105 (1814); Berne v. Bank of England, 9 Yes. 347 (1804). 8 Oakland R. Co. v. Oakland, Brooklyn & F. Y. R. Co., 45 Cal. 365 (1873). See People v. Albany & Y. R. Co., 24 N. T. 261 (1862) ; State v. Hartford &. N. H. E. Co., 29 Conn. 538 (1861); Com. v. Fitohburg R. Co., 78 Mass. (12 Gray; leu |[18d8). liO AFFIXING COEPOEATE SEAL. instrument without express authorization.^ In the absence of any express authorization by the directors, the president or other agent of a corporation has no power to affix the corporate seal to an instrument.^ Sec. 32i. Same — Mode of exercising poiver. — A body cor- porate can act only in the manner prescribed b}^ the law creat- ing such a corporation ; ^ but where a corporation is authorized to do an act without any manner for its performance being^ specially prescribed, it niay do it in any ordinary and proper way.^ Sec. 32j. Same — Power to employ -vsromen and children. — A corpor'ation formed under the New York act for business or manufacturing purposes, employing women under twenty-one years of age, or children under sixteen years of age, is required to post up in each room where such help is employed, a printed notice, stating the number of hours per day (which must not exceed sixty hours in any week) required of such persons and in every room where children under sixteen years of age are employed, a list of their names with their ages. No child under thirteen years of age is permitted to be employed by such company, and every child under sixteen years of age when so employed, must be recorded by name in a book kept 1 See Hunter v. Hudson R. I. Council of Montgomery v. Montgom- & M. Co., 20 Barb. (N. T.) 504 ery & W. Plank Road Co., 31 Ala. 7S (1855); Johnson v. Bush, 3 Barb. (1857); Winter v. Muscogee R. Co. Ch. (N-. T.) 207 (1848); People v. 11 Ga. 438 (1852); Petersburg v. Deyoe, 2 T. & C. (IST. Y.) 142 (1873). Metzker, 21 111. 205 (1859); Downing 2 See Hoyt v. Thompson, 5 N'. v. Mt. Washington E. Co., 40 N. H. Y. 320 (1851); Luse v. Isthmus Tran- 230 (1860); White's Bank v. Toledo sit R. Co., 6 Oreg. 125(1876); s. c. Ins. Co., 12 Ohio St. 601 (1861); 25 Am. Rep. 506. Beaty v. Knowler. 29 U. S. (4 Pet.) 3 Farmers' Loan & Trust Co. v. 152(1830); bk. 7 L. ed. 813; Dart- Carroll, 5 Barb. (X. Y.) 613 (1849); mouth College v. Woodward, 17 U- McSpedonv. Maf or, 7 Bosw. (N. Y.) S. (4 Wheat.) 518 (1819); bk. 4 L. 601 (1861); s. c. 20HOW. (N. Y.) Pr. ed. 629; Head v. Providence Ins. !i95; Firemen Ins. Co. v. Ely, 2 Cow. Co., 6 U. S. (2 Cr.) 127 (1804); bk. (N. Y.) 678 (1824); People v. Utioa 2 L. ed. 229. Ins. Co., 15 Johns. (N. Y.) 358 * See City of St. Louis v. Rus- (1818); Beatty V. Marine Ins. Co., 2 sell, 9 Mo. 507 (1845); Coe v. Co- Johns. 109 (1807): Hoosack v. Col- lumbus P. & I. R. Co., 10 Ohio St. lege of Physicians, of N. Y., 5 372 (1859); Clark v. Farrington, 11 Wend. (N. Y.) 547 (1830) ; City Wis. 306 (1860). POWER TO PURCHASE AND HOLD LANDS. 29 by the company for that purpose, and a certificate duly ver- ified by the child's parent or guardian (or if there be no parent or guardian then by such child) stating the age and place of birth of such child, must be kept on file by the com- pany. For every violation of such provisions, a fine is im- posed of from fifty to one hundred dollars.^ Sec. 32k. Power to bmld private railroad.— It shall be lawful for any individual company, association or private corpora- tion to build and operate solely for the purpose of conducting the business of such individual, company, association or cor- poration, a railroad on or across any highway ; provided that consent in writing, and under seal, of the owners of all lands on which any such railroad may be built, abutting a highway, be first obtained ; and provided further, that the consent, in writing, of the supervisor of the town in which any railroad proposed to be built under this act is located be also first obtained ; and provided further, that no such railroad shall be located, graded, built or operated as to interfere witli or obstruct the traveled part of any highway, or interfere with or obstruct the public use of any highway, or any highway intersecting the same.^ Sec. 321. Same— Power to purchase land.- By the Laws of 1882 it is provided that any corporation which shall have sold and conveyed any part of its real estate, maj^, notwith- standing any restriction in its charter, purchase, take and hold, from time to time, any lands adjacent to those already held by it; provided the Supreme Court shall authorize such purchase, taking and holding, upon the application of such corporation, and on being satisfied that the value of all lands proposed to be so purchased shall not exceed that of lands sold and conveyed by the said corporation within the three years next preceding such application.^ Sec. 32in. Same — Power to hold lands in foreign state and in- vest in stock of foreign companies. — By the Laws of 1883 the power to hold and convey real estate for business purposes is amended so as to read as follows : " It shall be lawful for 1 L. 1886, c. 409, §§ 1, 2; 4 N. T. 8th ed., p. 1402. 31. S., 8th ed., p. 2620. » L. 1882, c. 290, § 1; 3 N.T. E. S., 2 L. 1882, c. 140, § 1; 2 N.T. R. S., 8th fed., p. 1725. :j POWEK TO SELL ENTIEE PEOPBETY. any corporation organized under the laws of this state, and transacting business in it and other states, or foreign coun- tries, except savings banks, to acquire, hold and convey in such states or foreign countries, with the consent thereof^ such real estate as shall be requisite for 'such corporation, in the convenient transaction of its business, and to invest its funds in the stocks, bonds or securities of other corporations owning lands situated in this state or such states, provided tliat loans shall not be made on any stocks upon which divi- dends shall not have been declared continuously for three years immediately before such loans are made ; and provided, further, that such stocks shall be continuously of a market value twenty per cent, greater than the amount loaned or continued thereon." ^ Sec. 32n. Same — Power to sell entire property. — A general power to dispose of and alienate its property is thought to be incident to every corporation not restricted in this respect by express legislation, or the purposes for which it was created, and the nature of the duties and liabilities imposed by the charter.^ All corporations have an absolute y^s disponendi, in the absence of restriction,^ and may dispose of and alienate 1 L. 1883, c. 361, § 1, amending L. Barry v. Merchants' Exchange Co., 1882, c. 146, and L. 1875, c. 119; 3 N. Y. R. S., 8th ed., p. 1733. 2 Buffett V. Troy & B. R. Co., 40 N.Y. 176 (1869) ; Barry v. Mer- chants' Ex. Co., ISandf. Ch. (N.Y.) 280, 289 (1844) ; Hood v. New York, andN. H. R. Co. 22 Conn. 1 (1852) ; Commonwealth v. Smith, 92 Mass. (10 Allen) 448 (1865). See Warfleld V. Marshall Co. Canning Co., 72 Iowa 666 (1887) ; s. c. 2 Am. St. Rep. 263; also post, § 124a. ae to effect of sale of all of corporate property. 8 Buffett V. Troy cfe B. R. Co., 40 N.Y. 176 (1869) ; DeRuyter v. St. Peter's Church, 3 N.Y. 238 (1850) ; Clark V. Titcomh, 42 Barb. (N.Y.) 122 (1864) ; Partridge v. Badger, 25 Barb. (N.Y.) 146 (1857); Beers v. ?>hrt>nix G. Co., 14 Barb. (N.Y.) 358 (!8.">-J) ; Central Gold Mining Co. v. Piatt, 3 Daly (N.Y.) 263 (1870); 1 Sandf. Ch. (N.Y.) 280 (1844) ; Miners Ditch Co. v. Zellerbach, 37 Cal. 588 (1869) s. c. 99 Am. Dec. 300; Hood V. New York and N. H. R. Co. , 22 Conn. 1 (1852) ; Reichwald v. Commercial Hotel Co., 106 111. 439, 451 (1883) ; United States Bank v. Huth, 4 B. Mon. (Ky.) 423 (1844); Frazier V. Willcox, 4 Rob. (La.) 517 (1843); Binney's Case, 2 Bland Ch. (Md.) 142 (1829); State v. Bank of Maryland, 6 Gill & J. (Md.) 205 (1834); Pierce v. Emery, 32 N. H. 486 (1856); Burton's Appeal, 57 Pa. St. 213 (1868); Reynolds v. Commis- sioners of Stark Co., 5 Ohio 205^ (1831); Dana v. Bank of United States, 5 Watts. & S. (Pa.) 223 (1843),- White Water Valley Canal Co. v. Vallette, 62 U. S. (21 How.) 414 (1858); bk. 16, L. ed. 154. CONSENT OF STOCKHOLDEKS NECESSARY. 31 both chattels and lands as fully and freely as an individual may.i It follows as a natural conclusion that any corporation can dispose of any interest which it may have in any way it may deem expedient ^ ; and unless restrained by statute or other- wise may dispose of the whole of its corporate property, both real and personal, for any corporate purpose.^ It is thought that a majority of the sliareholders of a solvent and prosperous corporation cannot sell out tlie entire prop- erty of tlie corporation and invest their capital in other enterprises where the minority desire the prosecution of the business of the corporation*; and the directors, with the consent of a majority of the stockholders, as against the non- consenting stockholders, have no right to thus affect or discontinue the existence of the corporation and defeat the object of its organization^; because it is of the essence of the implied contract or compact of association in every cor- poration that the majority shall not control the corporate purposes to pervert or destroy the original purposes of the corporators®; and it is also well established that the funda- 1 State V. College of California, v. Turner, 12 Hun, (N.T.) 264 (1877); 38 Cal. 166, 171 (1869); Miners' Ditch Ardesco Oil Co. v. North American Co. V. Zellerbach, 37 Cal. 543 (1869); Oil & Mining Co., 66 Pa. St. 375, s. c. 99 Am. Dec. 300; Ardesco Oil 382 (1870). Co. V. North American Oil & Mining * Kean v. Johnson, 9 N. J. Eq. Co., 66 Pa. St. 375, 382 (1870). (1 Stock.) 401 (1853); See McCurdy 2 Barry v. Merchants' Ex. Co., v. Myers, 44 Pa. St. 535 (1863); 1 Sandf. Ch. (N.T.) 280 (1844); Boston & P. R. Co. v. New Torlc & Kelly V. Trustees of Ala. & C. E. N. E. E. Co., 13 E. I. 260 <1881); Co. 58 Ala. 489, 496 (1877); Richard- Clinch v. Financial Co., L. E. 4 Ch. son V. Sibley, 93 Mass. (11 Allen) 65 App. Cas. 117 (1868). (1865); White Water Valley Canal 6 Barclay v. Quicksilver Mining Co. V. Vallette, 62 U. S, (21 How.) Co., 9 Abb. (N.T.) Pr. N. S. 284 414 (1858); bk. 16 L. ed. 154. See (1870); Abbott v. American Hard Clark V. Titcomb, 42 Barb. (N.T.) EubberCo., 21 How. (N.T.) Pr. 193 122 (1864); Central Gold Mining Co. (1861); s. c. -33 Barb. (N.T.) 578; V. Piatt, 3 Daly (N.T.) 263 (1870); Middlesex R. Co. v. Boston & C. E.. United States Bank v. Huth, 4 B. Co., 115 Mass, 347 (1874); Balliet Mon. (Ky.) 423 (1844). v. Brown, 103 Pa. St. 546 (1883.) ' State V. College of California, See post § 123. 38 Cal. 166, 171 (1869); Miners Ditch ' Livingston v. Lynch, 4 Johns. Co. V. Zellerbach, 37 Cal. 543(1869); Ch. (N.T.) 573 (1820). s. 0. 99 Am. Dec. 300. See Webster 32 SALE TO ANOTHER COEPOEATION. mental articles or constitution cannot be changed or altered except by unanimous vote.^ A corporation may sell its property to another corporation,^ but a sale by one corporation of all its property to another corporation to be paid for in stock of the latter, which stock is to be distributed among the stockholders of the former, or any other agreement which will have the effect to withdraw the capital of an incorporated company and turn it over to the stockholders, except in the manner provided by law, is in violation of a statute which forbids the trustees " to divide, withdraw, or in any way pay to the stockholders or any of them, any part of the capital stock of the company," and for that reason is void as to any creditor of the corporation either prior or subsequent to such sale, who had no notice of the arrangement at the time of giving the credit.^ Where the consideration for such sale is the assumption and payment by the corporation purchasing of mortgage debts of the corporation making the sale, to the full value of all the property conveyed, such sale will not be set aside in favor of other unsecured creditors of the corporation making the sale ; neither will they have any lien on the property for which full value has been paid in good faith.* Sec, 32o. Same — Power to sell and convey real estate. — The 1 Livingston v. Lynch, 4 Johns. Ch. Zabriskle v. Hackensaci & N. T. (N.Y.) 573 (1820). See Blatchford E. Co., 18 N. J. Eq. (8 C. E. Gr.) v. Eoss, 54 Barb. (N.Y.) 42.(1869); 184 {IS&l); Com. v. Cullen, 13 Pa. s. c. 37 How. (N.T.) Pr. 113; 5 Abb. St. 144 (1850); s. c. 53 Am. Dec. 458. (K. Y.) Pr. N. S. 437; Abbott v. Commented on and distinguislied in American Hard Eubber Co., 33 Barb. Pacific E. Co. v. Hughes, 22 Mo. (N.Y.) 584 (1801) ; s. c. 20 How. (N. 291; s. o. 64 Am. Dec. 270. Y.)Pr. 204 (I860); Troy & E. E. Co. "- Warfield, v. Marshall Canning V. Kerr, 17 Barb. (N.Y.) 606 (1854); Co., 72 Iowa 666 (1887); s.c. 2 Am. Hartford * isr.%. E. Co. v. Croswell, St. Eep. 263, 5 Hill (N.Y.) 386 (1843); s. c. 40 » Martin v. Zellerbach, 38 Cal. Am. Dec. 356; Hoyt v. Quicksilver 300 (1869) ; s. q. 99 Am. Dec. 365. See Min. Co., 17 Hun, (N.Y.) 184(1879); San Francisco & N. P. R. Co. v. Skinner v. Dayton, 19 Johns. (N.Y.) Bee, 48 Cal. 404, (1874). 540 (1822); Clarke v. Omaha & S. W. * Warfield, v. Marshall Canning R. Co., 5 TSTeb. 346 (1877); Black v. Co., 72 Iowa 666 (1887); s. c. 2 Am. Delaware & R. Canal Co., 22 N. J. St. Rep. 263. Eq. (7 C. E. Gr.) 404 (1871); WHO MAY EXECUTE CONVEYANCE. 33 -ownership of real estate carries with: it the general power of disposition. Thus it has been held that where a corporation is authorized by its charter to purchase, hold and convey any real estate for its use, subject to the limitation that it shall not hold more than is necessary for its immediate accom- modation in transacting business, or such as it may have acquired by sale or otherwise for the purpose of securing debts due it, all real estate so held may be conveyed for its use.^ But it is held in New York that a corporation organized under the laws of that state has no power to transfer all its property, and thus terminate its existence, and taken in pay- ment stock in foreign corporations carrying on the same busi- ness.2 Sec. 32p. Same — Conveyance of corporation — ^who may ex- ecute — Where a general statute of this state, or the charter of the corporation, provides a particular officer or officers by whom conveyances by the corporation shall be made, or that the authority to make conveyances shall be given in a par- ticular way, such provision must be strictly complied with.^ But where there is no general statute governing, and no express provision in the charter or act of incorporation as to whom or by whom authority shall be given for executing 'Convej'ances by the corporation, the manager, trustees, board of directors or other body which has the management and control of the affairs of the corporation may execute such conveyance.* In such case it is not necessary that the board of directors or other managing body or the members thereof 1 Leggett V. New Jersey Manuf. * Buell v. Buckingham, 16 Iowa & Banking Co., 1 N. J. Eq. (1 Saxt.) 284 (1864) ; Hendee v. Pinkerton, 96 541 (1832); s. c. 23 Am. Dec. 728. Mass. (14 Allen) 381 (1867); Gordon 2 Taylor v. Earle, 8 Hun (N. Y.) v. Preston, 1 Watts (Pa.) 385 (1833). 1 (1876) ; Prothingham v. Barney, 6 See Union Turnpike Co. v. Jenkins, Hun, (N. Y.) 366 (1876.) 1 Cai. (X. T.) 381 (1803); Clark v. " See Cape Sable Company's Farmers' Manuf. Co., 15 Wend. (N. Case, 3 Bland Ch. (Md.) 606 (1823); T.) 256 (1836); McDonough v. Tem- Berks » Van Leuvan v. First Nat. Bank, 402 (1830). •58 NOTICE TO DIKECTOES. Sec. 32ti. Same— Notice to directors.— Information given to a board of directors as a body, regarding any matter upon which the corporation is required to act, is notice to the cor- poration 1 ; and a change in the board of directors made after notice has been given, does not affect such notice.^ While in some cases it is held that " as a general rule what- ever the directors know regarding matters affecting its interest the corporation knows " ; ^ yet there are cases which hold that where the directors are not officers, in a proper sense, and have no individual power to control or participate in the management of its concerns, individual notice to them ■will not be notice to the corporation.* And there are some cases which hold that the individual director, while not clothed with any special agency in a particular transaction, yet he should be regarded as in some measure an organ of communication between the board and third persons, with respct to matters upon which the board has power to act, and that where notice is given to him officially, "for the purpose of being communicated to the board, " with respect to any such matter, the corporation should be charged with notice, whether it is actually com- municated to the board or not.^ And another class of cases holds that where a director having such knowledge acts as a member of the board upon the matter affected by the information, the corporation will be bound, whether such knowledge is acquired privately or in the course of the business of the corporation.® ^Ex parte Holmes, 5 Cow. (N. T.) Bank of Hightstown t. Chiistopher, 426 (1826); FultonBank v. New York 40 N. J. L. (U Vr.) 435 (1878); s. c. & S. Canal Co., 4 Paige Cli. (N. Y.) 8 Cent. L. J. 181. ' 127 (1833); Bank of Pittsburg v. ^gee Boyd v. Chesapeake & O. Whitehead, 10 Watts (Pa.) 397 (1840); Canal Co., 17 Md. 195 (1860); Gen- .s. c. 30 Am. Dec. 186; Ex parte Agra eral Ins. Co. v. United States Ins. Bank, L. E. 3 Ch. App. 555 (1868). Co., 10 Md. 527 (1857); United States 2 See Mechanics' Bank of Alexan- Ins. Co. v. Shriver, 3 Md. Ch. 381 dria v. Seton, 26 U. S. (1 Pet.) 299 (1851.) (1828) ; bk. 7 L. ed. 152. ' 6 gee North Kiver Bank v. Aymar, 8 Toll Bridge Co. v. Betsworth, 30 3 Hill (N. Y.) 262 (1842); Bank of Conn. 380 (1862. ) . United States v. Davis, 2 Hill (N. Y.) * Louisiana State Bank v. Senecal, 451 (1842) ; National Security Bank 13 La. 525 (1839). See First Nat. v. Cushman, 121 Mass. 490 (1877); NOTICE TO STOCKHOLDERS. 59 But mere private knowledge on the part of one or more of the directors of the corporation, not communicated to the board, concerning any business in which the corporation is interested, where the directorshave no offieialduty to perform in regard to the matter concerning which they possess Tinowl- edge, and where they do not take any part in the transaction on behalf of the corporation, the corporation will not be affected by the facts within the knowledge of such directors.^ Sec. 32ui. Same — Notice to stockholders. — A notice given to one or more stockholders of a corporation respecting any corporate business is not notice to the corporation, because such stockholder is in no sense an agent of the corporation.^ Sec. 32 vi. Same — Ratification of employment — Formal meeting not necessary. — It is thought that it is not necessary, in order to charge a corporation for services rendered, that the directors at a formal meeting should have either formally Clerk's Savings Bank v. Thomas, 2 Mo. App. 367 (1878); Union Bank V. Campbell, 4 Humph. (Tenn.) .'594 (1843). Compare Terrell v. Branch Bank of Mobile, 12 Ala. 502 (1R47); Custer V. Tompkins County Bank, 9 Pa. St. 27 (1848). 1 See Atlantic Bank v. Savery, 18 Hun (]Sr. Y.) 36 (1879) ; s. c. 82 N. Y. 291; Westfield Bank v. Comen, 37 N. Y. 320 (1867); National Bank v. Norton, 1 Hill (N. Y.) 572 (1841); Fulton Bank v. New York & S. Canal Co., 4 Paige Cli. (N. Y.) 127 (1833); Lucas v. Bank of Darien, 2 Stew. (Ala.) 280 (1830) ; Farrel Foundi-y v. Dart, 26 Ccnn. 376 (1857); Fanners' & C. Bank v. Payne, 25 Conn. 444 (1857) ; Mercier v. Canonge, 8 La. An. 37 (1853); Fairfield Sav. Bank v. Chase, 72 Me. 226(1881); s. c. 39 Am. Eep. 319; 11 Rep. 809; General Ins. Co. v. United Ins. Co., 10 Md. 517 (1857); Winchester v. Baltimore & S. R. Co., 4 Md. 231 (1853) ; United States Ins. Co. V. Shriver, 3 Md. Ch. 381 (1851); Sawyer v. Pawners Bank, 88 Mass. (6 Allen) 207 (1863); First Nat. Bank of Hightstown v. Christopher, 40 N. J. L. (11 Vr.) 435 (1878); s. c- 8 Rep. 403; 8 Cent. L. J. 181; Jones V. Planters' Bank, 9 Helsk. (Tenn.) 455 (1872); Peruvian R. Co. v Thames & M. M. Ins. Co., L. R. 2 Ch. 617 (1867); In re Carew's Estate Act, 31 Beav. 39 (1862) ; Povyles v. Page, 3 C. B. 16 (1846); Ex parte Buijbridge, 1 Deac. 131 (1835); Ex parte Watkins, 2 Mont. & A. 349 (1836) ; s. c. 4 Deac. & Chit. 87. 2 Fairfield Turnpike Co. v. Thorp, 13 Conn.' 182 (1839); Housatonic Bank V. Martin, 42 Mass. (I Mete.) 294 (1840) ; Pittsburgh Bank v. Whitehead, 10 Watts (Pa.) 397, 402 (1840); s. c. 36 Am. Dec. 186; Union Canal Co. v. Loyd, 4 Watts & S. (Pa.) 393 (1842). 60 DELEGATION OF POWEE. authorized or ratified the employment,^ because, for many purposes, the officers and agents of the corporation may employ persons to perform services for it, and such employment being within the scope of the agent's or officer's duty, binds the corporation, and where an officer employs an agent to perform services for the corporation, and such services are performed with the knowledge of the directors, and they received the benefit of such services without objec- tion, the corporation is liable upon an implied assumpsit.^ Sec. 32wi. Same— Evidence of. —Evidence that a report of the liabilities of defendant corporation, showing an amount due plaintiffs' assignor for a salary, had been before a stockhold- ers' meeting, and was not objected to, is sufficient evidence of ratification of the services to go to the jury.^ Sec. 32x1. Same— Delegation of Power.— Although the charter of a corporation declares that its powers shall be exercised by a board of directors consisting of a specified number, yet the board may delegate its authority to agents or a quorum composed of less than the majority of the number.* But the transfer of the powers of one corporation to another without legislative authority are against public policy and the courts will do nothing which will promote the transfer.^ Sec. 32yi. Same — Statutory agents — Implied prohibition. — When a statute covers the whole subject and prescribes the persons who may bind a corporate body, and the manner in which they may bind it, resort to other instrumentalities is by implication prohibited.^ But it is a general rule that the president and directors of a company, when legally chosen, 1 Scott V. Middletown U. & W. G. ^ Chicago Gas-Light Co. v. Peo- Co., 86 N. T. 200,206(1881); Con- pie's Gas-Light Co., 121 111. 530 over V. Mutual Ii*. Co., of Albany, (1887); s. c. 2 Am. St. Rep. 124. 1 N. Y. 290, 292 (1848). See Hays v. Ottawa O. & F. R. V. 2 Hooker v. Eagle Bank, 30 N. T. R. Co., 61 111. 422 (1871); Thomas v. 83, 86 (1864); s. c. 86 Am. Dec. 351. West Jersey R. Co., 101 U. S. 83 3 Copelandv. Johnson Manuf. Co., (1879); bk. 25 L. ed. 950. (Sup. Ct. G. T.) 3 N. T. Sup. 42 « Landers v. Frank Street Meth- (1888); s. c. 19 N. T. St. Rep. 212. odist Church, 97 N. Y. 119 (1884). * Hoyt V. Thompson, 19 N. Y. 207 (1859). DUTY OF COMPANY AS TO AGENTS. 61 are the proper parties to execute acts ordered to be done by the president, directors and company.^ Sec. 32z\ Same— Notice as to powers— Corporations being artificial creatures, existing by virtue of law and organized for powers defined in their charters, he who deals therewith is chargeable with notice of the purpose for which it was formed, and when he deals with agents or oificers of a corporation he is bound to know their powers and the extent of their authority.^ Sec. 32a2. Same — Duty of company as to agents. — Incorporated companies whose business is necessarily conducted by agents .should be required at their peril to see to it, that tlie officers and agents whom they employ, not only know what their powers and duties are, but that they do not habitually and as a part of their system of business transcend those powers.^ Sec. 32b2. Same— Apparent authority.— A corporation is bound by the acts of one whom it clothes with apparent authority to act for it, and allows to act for it with third persons.* Sec. 32c2. Same— Private instructions.— One dealing in good faith with a corporation cannot be affected by private in- structions to or limitations upon the agent. Sec. 32d2. Acts and contracts of officers and agents.— A corpo- ration is bound by the express or implied contracts of its agents or officers made in the ordinary discharge of their official duties, although not authorized or executed under its corporate seal.® Thus, where the president and vice-president 1 Union Turnpike Co. v. Jenkins, Agency, sec. 127; Field on Corp., 1 Cai. (N. y.) 381 (1803). sees. 192, 209. 2 Alexander v. Cauldwell, 83 N. T. « Cheever v. Gilbert Elevated R. 480 (1881); DeBost v. Albert Palmer Co., 43 N. Y. Super. Ct. (11 J. & S.) Co., 35 Hun (N. T.) 386, 388 (1885). 478, 486 (1878). See President & 3 Conover v. Ins. Co.. 1 K. Y. 290, Directors of the Bank of the Metrop- 292 (1848). oils v. Guttschlick, 39 U. S. (14 Pet.) 4 East River National Bk. V.Gove, 19 (1840); bk. 10 L. ed. 335; Fleck- 57 N. Y. 597 (1874). ner v. President & Directors of the 6 Insurance Co. v. McCain, 96 IT. Bank of United States, 21 U. S. S. (6 Otto) 84 (1877); bk. 24 L. ed. (8 Wheat.) 338 (1823); bk. 5, L. ed. 6.53; Merchants' Bk. v. State Bk., 77 631; Bank of Columbia v. Patter- U. S. (10 Wall.) 604, 650 (1870); son's Ad'mr., 11 U. S. (7 Cr.) 299 bk. 19, L. ed. 1008. See Story on (1813) ; bk. 3 L. ed. 351. 62 RATIFICATION. of a corporation instruct a person to deal with the super- intendent, and the corporation receives the beneiit of an oral, agreement made by him for the corporation, it cannot deny his authority to act.^ But it is said by the New York City Court in the care of Middlesex County Bank v. Hirsch Bros. Veneer Manfg. Co. ,^ that in an action to charge a corporation as indorser of notes indorsed in its name by "L. HiESCH, Manager," a judgment against the corporation is unauthorized, in tlie absence of evidence of Hirsch's authority, or that the notes related to the corporation's business, or that it ever received any value for or benefit from the indorsement. Sec. 32e2. Same — Ratification. — A Corporation like an individual may ratify the acts of its agents done in excess of their authority, and such ratification may in many cases be inferred from the informal acquiescence in or the approval of his acts.^ But a subsequent ratification will not be inferred in the absence of proof of notice of the unauthorized acts of the agents.* An averment in pleading that an agent of a corporation acted by due authority is sustained by proof of subsequent ratification.^ Sec. 32f2. Same— Previous assent.— A previous assent is as effective as a subsequent ratification, and a ratification of all stockholders of the unauthorized act of the president or the agent of the company, will make it valid.^ Letters to an in- corporation may be properly relied upon by the plaintiff, as ratification of an agent's acts.^ Sec. 32g''. Same — Ratification by acquiescence. — The ratifi- cation by a corporation of an unauthorized act of an agent, 1 Morrell v. Long Island E. Co., 6 Martin v. Niagara Falls Paper (N. T. City Ct. GilT.) 1 N. T. Sup. Manuf. Co., 44 Hun (N. Y.) 130, 140 65 (1888). (1887). See Sheldon Hat B. Co. v. 2 4 N. T. Sup. 385 (1889). Eickemeyer Hat B. M. Co., 90 N. Y. ' Hoyt V. Thompson, 19 N. Y. 207 607 (1882); Kent v. Quicksilver Min- (1859). ing Co., 78 N. Y. 159 (1879). * Dabney v. Stevens, 10 Abb. ' Scott v. Middletown, U. & W. (N. Y.) Pr. N. S. 39 (1870). G. R. Co., 86 N. Y. 200, 208 (18S1). 6 Hoyt V. Thompson, 19 N. Y. 207 See Wild v. New York & Austin (1S59). Mining Co., 59 N. Y. 644 (1874). BATIPICATION BY ACQUIESCENCE — ESTOPPEL. 63 which is within the scope of its corporate powers, may be inferred from acquiescence merely.^ If the directors of a com- pany, either through inattention or otherwise, suffer its subor- dinate officers to pursue a particular line of conduct for a considerable period without objection they are as much bound to those who deal with the officers in good faith and in ignorance of their want of authority as if the requisite power had been directly conferred.^ Sec. 32li'. Same — Estoppel.— Where a corporation has en- joyed the fruits of the act of an agent, ratification will be pre- sumed, and it will not be permitted to deny the authority of such agent.^ Thus it has been said that where a corporation receives material services appropriate or incident to its busi- ness, engaged upon its credit and for its use by one of its- officers, without authority, and appropriates it for the purpose for which it was designed, this is an adoption and ratification of the act of the agent or officer.* It is the general doctrine that where an officer employs an agent to perform a service for the corporation and it is per- formed with the knowledge of the directors and they receive the benefit of such service without objection the corporation is liable.^ 1 Hoyt V. Thompson, 19 N. T. ^Hooker v. Eagle Bankof Eoches- 206, 215 (1859). See New York & N. ter, 30 N. Y. 83, 86 (1864); s. c. 86 H. R. Co. V. Schuyler, 34 N. Y. 30, Am. Dec. 351. See Peterson v. Mayor 63 (1865); Olcottv. Tioga E. Co., 27 &c., of N. Y., 17 N. Y. 449 (1858); N. Y. 546 (1863); s. c. 84 Am. Dec. Long Island E. Co. v. Marquand, 6 298; Caldwell v. National M. V. N. Y. Leg. Obs. 160 (1848) ; Fister v. Bank, 64 Barb. (N. Y.) 342 (1869). La Rue, 15 Barb. (N. Y.) 323 (1853); ^Beers v. Phoenix Glass Co., 14 Ex parte Peni Iron Co., 7 Cow. Barb.358N.Y.( 1852); Caldwell V.Nat. (N. Y.) 540(1827); Dunn v. Rector M. B. Bk., 64 Barb. N. Y. 342 (1869.) of St. Andrews, 14 Johns. (N. Y.) 8 Lee V. Pittsburgh C. & M. Co., 118 (1817); Danforth v. Schoharie 56 How. (N. Y.) Pr. 378(1877); afC'd Turnpike Co., 12 Johns (N. Y.) 227 75 N. Y. 601. See Lander's Case, 97 (1815) ; American Ins. Co. v. Oakley, N. Y. 119 (1884) ; and The Alexan- 9 Paige Ch.(N". Y.) 496 (1842) ; s. c. 38 der Case, 83 N. Y.480 (1881); Castle Am. Dec. 561; Commercial Bank of V. Lewis, 78 N. Y. 131, 134, 135 (1871) ; Buffalo v. Kortright,22 Wend. (N. Y.) Parish v. Wheeler, 22 N. Y. 494, 508, 348 (1839) ; Kortright v. Buffalo Com- 509 (1860); Bissell v. Michigan S. & mercial Bank, 20 Wend. (N. Y.) 91 N. L E. Co., 22 N. Y. 258 (1860). (1838.) * Scott V. Middletown U. V. & W. G. R. Co., 86 N. Y. 200, 206 (1881.) 64 FRAUDS AND MISKBPHESENTATIONS OF AGENTS. On the same principle one who has had the benefit of an act done by a corporation without authority, cannot be per- mitted to avail himself of the defence of want of authority, express or implied, by the terms of the charter.^ Sec. 3212. Agents — Frauds and misrepresentations. — To sus- tain an action for fraud founded upon representations made by a director of a corporation in the form of published state- ments and reports, as to its financial condition, it must be made to appear that he believed or, had reason to believe, at the time he made them, that the representations were false or that he had actual knowledge of the truth, and the plaintiff relied upon them to his injury. Knowledge of all of the affairs of the company cannot be imputed to a director for the purpose of charging him with fraud.^ The active managers of a corporation are the agents of the company and not of the directors as individuals, and have no power to bind the latter by their statements, consequently the mere fact of being a director and stockholder is not per se sufficient to hold the party liable for the frauds and misrepre- sentations of such active managers. Some knowledge and participation in the act claimed to be fraudulent must be brought home to the person charged. It is only where a director lends his name and influence to promote a fraud upon the community, or is guilty of some violation of law through mismanagement, that he is personally liable.^ 1 Cheever v. Gilbert Elevated R. (1819) ; Baltimore & P. S. Co. v. Co. , 42 N. T. Super. Ct. (11 J. & S.) McCutcheon, 13 Pa. St. 13 (1850). 478 (1878). See Parisli v. Wlieeler, 2 Wakeman v. Dalley, 51 N. T. 27 22 N. Y. 494 (1860); Bissell v. Mich. (1872); 8. c. 10 Am. Rep. 551; criti- S. & N. I. R. Co., 22 N. T. 258, 359 cisiug and questioning Bennett v. (1860); Mottv. United States T. Co., Judson, 21 N. Y. 238 (1860). See 19 Barb. (N. Y|> 568 (1855); Steam Marsh v. Falker,40 N. Y. 566 (1869); Nav. Co. V. Weed, 17 Barb. (N. Y.) Jackson v. King, 4 Cow. (N. Y.) 207, 378(1853); Sacketts Harbor Bank v. 220 (1825); s. c. 15 Am. Dec. 854; President, etc., of Lewis County Starr V. Peck, 1 Hill (N. Y.) 270 Bank, 11 Barb. (N. Y.) 213 (1851); (1841); Fleming v. Slocum, 18 Johns. Potter V. Bank of Ithica, 5 Hill (N. (N. Y.) 403 (1820); s. c. 9 Am. Dec. Y.) 490, 491 (1843) ; Pringle v. Phil- 224. lips, 5 Sandf. (N. Y.) 170 (1851); ' Arthur v. Griswold, 55 N. Y. 400 Shutesbury v. Oxford, 16 Mass. 102 (1874.) HOT WATER AND STEAM HEATING CO'S. 65 See. 33. Hot water, hot air, and steam-heating com- paniesi' — The municipal authorities of the cities, towns and villages of the state of New York, are hereby authorized and empowered to carry out the provisions of this act.^ Any corporation or association formed' or organ^ ized under the act entitled ' ' An act to authorize the formation of corporations for manufacturing, mining, mechanical or chemical purposes," passed February seventeenth, eighteen hundred and forty-eight, or under any of the amendments to said act, or under the " Act to provide for the organization and regula- tion of certain business corporations," passed June twenty-first, eighteen hundred and seventy-five, shall have full power to manufacture, furnish and sell such quantities of hot water, hot air, or steam, as may be required in the city, town or village where the same shall be located ; and such corporation shall have power to lay pipes or conductors for con- ducting hot water, hot air, or steam through the streets, avenues, lanes, alleys, squares and highways in such city, village or town, with the consent of the municipal authorities of said city, town or vil- lage, and under such reasonable regulations and conditions as they may prescribe ; and whenever any such permission shall be granted, it shall only be upon the condition that reasonable compensation shall be paid therefor, and upon a further condition ^ that a satisfactory bond shall be given to secure the city, town or village against all damages in the use of said pipes. The amount of the compensation, and the manner of its payment, and the amount of iL. ISTO, c. 317, § 1. 5 66 NATUEAL GAS CO'S. — POWER TO LAY PIPES. the bond, shall be first fixed and determined by said municipal authorities before any pipes, as provided for by this act, shall be laid in any city, town or Adllage of this state, and that all such permissions heretofore given by any of said municipal authori- ties, where the above terms have been complied with, are hereby confirmed.^ Sec. 33a. Steam-heating companies — Statutes. — See L. 1880, c. 263, as amended by Laws of 1883, chapter 237, " An act- for the protection of corporations organized for the generating and distributing of steam for heating and other purposes." By the Laws of 1885, chapter 549, steam-heating companies are required, upon certain terms and conditions, to supply steam for heating upon the application of owners or occupiers of buildings which are situated " within 100 feet in street- main laid down " by such company. Sec. M. Natural Gas Companies.— The general as- sembly of 1889 passed an act " to provide for the or- ganization and regulation of natural gas companies, being 'an act supplementary to chapter 611 of the Laws of 1875'," This statute provides that : It shall be lawful for any corporation organized under chapter six himdred and eleven of the Laws of one thousand eight hundred and seventy-five, and acts amendatory thereto, for the purpose of boring, drilling, or min- ing for natural gas, and conveying and distributing the same in pipes, and vending said gas to the consumers thereof, to purchase, lease, secure and convey svLqja. real estate, and such only, as may be necessary for the convenient transaction of their business; and to effectually carry on the operations of such corporation.^ Sec. 35. Same— Power to dig trenches and lay pipes.— 1 L. 1879, c. 317, § 2. 2 L. 1889, c. 422.§ 1. SANCTION OF CITY AUTHOEITIES. 6T Such corporation is authorized to dig and trench for, and lay their pipes along or jinder any of the public roads or highways, or through or under any of the waters within the limits of this state : pro- vided the same shall not be so done as to incommode the public use of said highways, or interrupt the navigation of said waters. Provided, however, that no pipe-line for the purpose aforesaid shall be con- structed along, across, or upon any public highway without the consent of the commissioners of high- ways of the town in which such highway is located, upon such terms as may be agreed upon with such commissioners, or upon the order of the general term of the supreme court of the department in which such highways are situated, made upon petition, and notice to the commissioners of highways of such town, according to the practice, or order of the court, or an order to show cause; and in such man- ner, and upon such terms as shall be ordered by the court.^ Sec. 36. Same — Sanction by city authorities. — No pipe- line shall be constructed into or through any in- corporated city or village in this state, unless the same be sanctioned by a majority of the common coun- cil of such city, or trustees of such village, by resolu- tion adopted at a regular meeting of such common council, or board of trustees, which resolution shall prescribe the terms upon which consent is granted. Nothing in this or the preceding section shall be construed or held to confer any other right than the relinquishment of the public rights, and the consent of the people to the construction of such pipe-line, and shall not aflfect any private right.^ iL. 1889 c. 422, § 2. 2 l. iggg, c. 422, § 3. 68 STJKVBYS — DAMAGES. Sec. 37. Same— Surveys— Compensation.— When any corporation formed as aforesaid has fully completed its organization, the said corporation, its agents or employees shall be authorized to enter upon any lands for the purpose of making surveys, and to agree with the owner of the property as to the amount of compensation to be paid such owner for the right of laying and maintaining pipes for conveying natural gas on or beneath the surface of said lands. ^ Sec. 38. Same— Map of route— Signing and filing.— Before entering on or using any lands, for the pur- pose of conveying natural gas as aforesaid, the said corporation shall cause a survey and map to be made, of the proposed route of said pipe-line, by, arid on which the lands of each owner and occupant through which the same may run shall be designated, which map shall be signed by the president of said cor- poration and its secretary, and be filed in the oflBce of the county clerk of the county in which the lands are situated; and the said corporation, by any of its officers, agents and servants, may enter upon any lands.for the purpose of making such survey and map.^ Sec. 39. Same— Commissioners to assess damages — Report. — In all cases where the said corporation shall be unable to agree with the person owning, or having an interest in any lands, for the right to lay gas-pipes through the same, the supreme court, at any speciH term thereof, held in the judicial dis- trict in which lands are situated, shall, on applica- tion of the said corporation, after ten days' written notice, personally served within this state, or if such persons shall be incapacitated from receiving per- 1 L. 1889 c. 422, § 4. ^L,. 1889, c. 422, § 5. ASSESSMENT OF DAMAGES. 69 sonal notice, then by service in such manner as the court shall direct, appoint three disinterested citizens of the county in which such lands are situated, who shall be freeholders, as commissioners, to determine the damage sustained by each of said persons, by reason of the use of his or her lands, for the pur- pose above recited. Such commissioners shall take the oath required by the constitution of public oflScers, and shall personally examine each parcel of land proposed to be used, and shall estimate and report to said court at any term thereof held in said judicial district, on ten days' notice, served as afore- said, on the parties in interest, the several sums which they shall decide to be just compensation to such owners, or personally interested, for the use of such property- as aforesaid. Such commissioners may examine witnesses upon hearing before them, and shall have power to administer oaths to such witnesses, and all the evidence they shall take shall accompany their report to the court. On the pres- entation of such report the said court may confirm or amend, or appoint new commissioners, who shall proceed in like manner as the first commissioners, and whose reports, subject to amendment as afore- said, shall be final, and shall be confirmed by said court. Said commissioners shall receive from the said corporation the sam of three dollars per day each, for the time employed by them in the per- formance of their duties, together with the amount which they shall certify, on their oaths, as correct, in their said report, for incidental expenses con- nected with their work, including the preparation of said report,^ 1 L. 1889, c. 422, § 6. 70 CERTIFICATE OF INCORPORATION. Sec. 40. Same— Confirmation of report— Deposit by corporation.— Whenever any report of such commis- sioners shall have been confirmed by the said supreme court, the said corporation may deposit, as the court directs, or pay to the said owner of persons as court directs the sum mentioned in said report, in full compensation for the right or easement so required, and thereupon the said corporation shall be seized of said easement and discharged from all claim by reason of such appropriation and use.^ Sec. 41. Certificate of Incorporation. — Whenever five or more persons, a majority of whom shall be citizens and residents of this state, shall propose to form a corporation under the provisions of this act, they shall make a certificate to that effect, which certificate shall be signed by each of such persons and duly acknowledged by them before some officer authorized to take acknowledgments under the laws of this state. Such certificate shall set forth : 1. The name of the proposed corporation. 2. The object for which it is to be formed, includ- ing the nature and locality of its business. 3. The amount and description of the capital stock. 4. The number of shares of which such capital stock shall consist. 5. The location of the principal business office. 6. The djiration of the corporation, which, how- ever, shall not exceed fifty years.^ Sec. 41a. Infringement of corporate name. The " United States Commercial Agency & Collecting Company," a name sought to be used by petitioner, a corporation engaged in the 1 L. 1889, c. 422, § 7. 8th ed., p. 1979. See post note to 2 L. 1875, c. 611, § 2; 3 N. Y. E. S., § 47. CHAKGE OP NAME — PETITION FOR. 71 same business as respondent, the " United States Mercantile Reporting Company," is an infringement of respondent's name.^ Plaintiff transacted business in New York city for more than fifty years under the name of the " Farmers' Loan & Trust Company." Defendant, organized under the laws of Kansas in 1885, under the name of the "Farmers' Loan & Trust Company of K-ansas," established an office in New York city, ,and advertised, omitting from its name the words " of Kansas." The court held, that a preliminary injunction should issue restraining defendant from using its name on advertising matter without the words " of Kansas." ^ Sec. 41b. Change of corporate name — Application to supreme court for. — Any incorporation, incorporated company, society or association organized under the laws of this state, except- ing banks, banking associations, trust companies, life, health, accident, marine and fire insurance companies, may apply at any special term of the supreme court sitting in the county in which shall be situated its chief business office, for an order to authorize it to assume another corporate narae.^ Sec. 41c. Same — Petition and notice of application. — Such application shall be by petition, which shall set forth the grounds of the application, and shall be verified by the chief officer of the corporation. Notice of such application shall be published for six weelis in the state paper and in a newspaper of every county in which such corporation shall have a business office, or, if it have no business office, of the county in which its principal corporate property is situated, such newspaper to be one of those designated to publish the session laws ; and it must appear to the satisfaction of the court that such notice has been so published, and that the application is made in pursuance of a resolution of the direc- tors, trustees or other managers of the corporation applying.* 1 In re United States Mercantile sas, 21 Abb. N. C. 104 (1888); 8. c. Reporting & Collecting Ass'n, 1 N. T. Sup. 44. (Sup. Ct. G. T.) 4 N. Y. Sup. 916 s l. 1870, c. 322, § 1, as amended (1887.) by L. 1876, c. 280. 2 Farmers' Loan cS; Trust Co. v. * Id. § 2, Farmers' Loan & Trust Co. of Kan- 72 CHANGE OF NAME — ^EFFECT ON SUITS. Sec. 41d. Same — Povsrer of court to order a change of name. — If the court to which such application is made shall b& satisfied, by such petition so verified, or by other evidence, that there is no reasonable objection to such corporation changing its name, it may make an order authorizing it to assume the proposed new corporate name. A copy of said order shall be filed in the office of the secretary of state, and with the county clerk of every county in which said corpora- tion has a business office, or, if it have no business office, of the county in which its principal corporate property is situ- ated, and be published at least once in each week for four weeks in some newspaper in every county where such cor- poration has a business office, or if it have no business office in the county in which its principal corporate property is situ- ated, such newspaper to be designated by the court.^ Sec. 41e. Same — When change of name to take effect. — When the requirements of this act shall have been complied with, the corporation applying for a change of name may, from and after the day specified in the order of the court, be known by and use the new corporate name designated in the order of the court.^ Sec. 41f. Same — Change not to affect pending suits, rights or liabilities.— No suit or legal proceeding commenced by or in behalf of or against any corporation shall abate by reason of a change of its corporate name, made as herein authorized. Such change of the corporate name of the said corporation or company shall in no way affect the rights or liabilities of said corporation or company. All obligations of said corporation or company may be enforced against said corporation or company in the changed name, and all actions and proceedings commenced and pending against said cor- poration or Company at the time said corporate name is changed shall be continued in the name in which said action or proceedings were commenced, or the court may, on the ap- plication of either party, allow the action or proceeding to be continued in the corporate name to which said corporation or company has been changed.* J L. 1870, c. 322. § 3. 2 Id., § 4. « i^.^ § 5, CAPITAL STOCK — ORGANIZATION. 73 Sec. 41g. Same— Discretion of court.— Under Laws N. Y. 1870, c. 322, authorizing the court to change the name of a corporation when there appears to be no reasonable objection thereto, the power to make such change is entirely discretionary with the court.^ Sec. 41h. Capital stock. — The term "capital stock" of a corporation has been said to consist of the aggregate of the shares into which the capital is divided upon the incorpora- tion,^ and of its property, real and personal.^ That is, all the funds upon which it transacts its business, which would be liable to its creditors, and in case of insolvency pass to a receiver.* Other courts hold that the term " capital stock " in an act of incorporation, means the amount of money con- tributed, or shares subscribed by the stockholders as members of the company, and does not refer to the property thereof.^ Sec. 411. Same— Shares of stock. — A share of stock may be defined as " a right which its owner has in the management, profits, and assets of the corporation." ^ Sec. 41j. Defective organizatioiis.— It is thought that where the papers filed by which a corporation is sought to be cre- ated, are colorable but so defective that in a proceeding ou 1 In re United States Mercantile 492 (1883); Kent v. Quicksilver Min- Eeporting Co., 115 N. Y. 176 (1889); ing Co., 78 N. Y. 159 (1879); Burrall s. c. 21 N. E. 1034. V. Bushwick E. Co., 75 N. Y. 211, 2 Cook on Stockholders, § 199. 216(1878); People v. Commissioners, 3 New Haven v. City Bank, 31 40 Barb. (N. Y.) .3.5.3 (1863); Field v. Conn. 106 (1862); State Bank v. Pierce, 102 Mass. 253, 261 Brackenridge, 7 Blackf. (Ind.) 395 Bent v. Hart, 73 Mo. 641 ; s. c. 10 (1845.) Mo. App. 143 (1881) ; Bradley v. * See International Life Assurance Bauder, 36 Ohio St. 28, 35 (1880) ; Society v. Commissioner of Taxes, s. c. 38 Am. Rep. 547; Jones v. Dar 28 Barb. (N. Y.) 318 (1858); s. c. vis, 35 Ohio St. 474, 477 (188u); 17 How. (N. Y.) Pr. 206. Brightwell v. Mallory, 10 Yerg- * St. Louis L M. & S. K. Co. v. (Tenn.) 196 (1836) ; Harrison v. Blgelow, 30 Ark. 693 (1875). See Vines, 46 Tex. 15, 21(1876); Barks- State v. Morristown Fire Association, dale V. Finney, 14 Gratt. (Va.) 3.38, 23 N. J. L. (3 Zab.) 195 (1851). 357 (1858); "Van Allen v. Assessors, 6 Plimpton V. Blgelow, 93 N. Y. 70 U. 6. (3 Wall.) 573, 585 (1865); 592, 599 (1883). See Jermain v. Lake bk. 18 L. ed. 229. Shore & M. S. K. Co., 91 N. Y. 485, 74 LICENSE — NAME. the part of the state against it the corporation would for that reason be dissolved ; yet by acts of user under such an organization it becomes an organization de facto, and no advan- tage can be taken of such defect in its constitution, collater- ally, by any person.^ » Sec. 42. License— Secretary of State to Issue. — Such certificate sliall be filed in the office of the Secretary of State, and the Secretary of State shall thereupon issue a license to the persons making such certificate, empowering them as commissioners to open books for subscriptions to the capital stock of such corporation at such times and places as they may determine ; but no license shall be is- sued in the case of a proposed corporation, having the same name as an existing corporation in this state, or a name so nearly resembling that of an existing corporation as to be calculated to deceive.^ 1 See Buck v. Barker, 5 N. Y. St. = L. 1875, c. 611, § 4 ; 3 N. Y. R. S., Eep. 826, 828 (1887) ; Buffalo & A. 8th ed., p. 1979. See Chemical ~R. Co. V. Gary, 26 N. Y. 75, 77 (1862) ; National Bank v. Colwell, 14 N. Y. Aspinwall v. Sacchi, 57 N. Y. 331, St. Rep. 682, 685 (1888). 338, (1874); Meriden Tool Co. v. Morgan, 1 Abb. (N. Y.) N. C. 125 note ,(1875). CHAPTER III. BUSINESS ACT (Continued). OPENING SUBSCEIPTION-BOOKS — BY-LAWS — CERTIFICATE OP INCORPOKATION — PAILXJEE TO ORGANIZE. Sec. 43. Commissioners to Open Subscription Books —First Meeting of Sub- scribers. Sec. 43a. Subscriptions to Stock. Sec. 43b. Same — Subscription in Memorandum Book. Sec. 43c. Same — Agreement to Subscribe. Sec. 43d. Same — When Subscription Void. Sec. 43e. Same— Failure to Pay Ten Per Cent. Sec. 43f. Same — Payment by Check. Sec. 4.3g. Same — Who may take Subscriptions. Sec. 43h. Same — Who may Subscribe. Sec. 43i. Same — Irregularity and Informality. Sec. 43j. Same — Statutory Regulation. Sec. 43k. Same —Implied Promise to Pay. ■Sec. 431. Same— Conditional Subscription. Sec. 43m. Same — Condition Precedent. Sec. 43n. Same — Condition Subsequent. Sec. 43o. Same— Conditions in Charter. Sec. 43p. Same — Parol Agreements. Sec. 43q. Same — Frauds in Subscription for Stock — Signing Fictitious Name. Sec. 43r. Same — Effect on Subscription. Sec. 43s. Same— False and Fraudulent Representations. Sec. 4,3t. Same — When Binding. Sec. 43u. Same — How Misrepresentations Arise. Sec. 43v. Same— Fraudulent Agreements. Sec. 43w. Same — Substitution of Stockholders. Sec. 43x. Same— Withdrawal of Subscription. Sec. 43y. Same — Payment of Subscription— Action to Recover. Sec. 43z. Same— Insolvent Corporation— Risht of Creditors to Enforce Sec. 43ai. Same— Liability of Members— Unpaid Subscriptions. Sec. 43bi. Same — Agreements Exempting from Liability. Sec. 43c1. Same— Statutory Liability of Officer. Sec. 44. By-Laws — What they must Provide. Sec. 44a. Same — Definition of. (76) 76 OPENING SUBSCEIPTION BOOKS. Sec. 44b. Same— Power to make and Enforce. Sec. 44e. Same— Mode of Adoption of By-Laws. Sec. 44d. Same— Extent, Force, and Effect of By-Laws. Sec. 44e. Same— Construction. Sec. 44f. Same— Validity. Sec. 44g. Same— By-Law Regulating Memberehip. Sec. 44h. Same— By-Law Controlling Acts of Members. Sec. 44i. Same— By-Laws as to Assessments — When void. Sec. 44j. Same— Invalid By-Laws— Injunction to Restrain Enforce- ment. Sec. 44k. Same— By-Law Regulating Signing of Notes— Lack of Secre- tary's Signature. Sec. 441. Same — Void in Part. Sec. 44m. Same — Unreasonable By-Law Void. Sec. 44n. Same — By-Law Inconsistent with General Law. Sec. 44o. Same— By-Law Restricting Right to Use. Sec. 44p. Same— Repeal of By-Law. Sec. 44q. Same— Notice of By- Laws— When Presunied. Sec. 44r. Same— Failure to Provide by By-Laws for Annual Election.. Sec. 44s. Same— Salary of Officers— Directors. Sec. 44t. Same — Salary of President. Sec. 44u. Same — Salary of Agents and Servants. Sec. 45. Commissioners' Report — Certificate of Incorporation. Sec. 45a. Organization Tax. Sec. 45b. Incorporation and Powers. Sec. 46. Failure to Organize — Revocation of License. Sec. 46a. Failure to Organize — Recovery of Money Advanced. Sec. 46b. Forfeiture and Surrender of Charter. Sec. 43. Commissioners to open Subscription Books — First meeting of subscribers.— Said commissioners shall proceed to open books for subscriptions to the capital stock of such corporation, and no such subscription shall be received unless at the time of making it the person so subscribing shall pay to said commissioners ten per cent, of the par value of the stock subscribed for in cash. When one-half of the capital ?tock has. been subscribed, said commis- sioners shall call a meeting of the subscribers for the purpose of adopting by-laws for such corporation and electing directors thereof. Notice of such meet- ing shall be given to every subscriber by depositing in the post-office, properly addressed to his last SUBSCKIPTIONS TO STOCK. 77 known place of residence, and postage prepaid, at least five days before the time fixed, a written or printed notice, stating the time, place and object of such meeting,-' Sec. 43a. Subscriptions to stock. — It is thought that it was not intended by the statute to prescribe a fixed mode of making a subscription, and that any contract of subscription which is good at common law, is still valid under the statute.^ All contracts of subscription must be in writing.^ But a simple writing of the name to the articles of incorporation, with a statement of the number of shares subscribed for written opposite the name, is a suiScient writing and con- stitutes a binding subscription for the stock, and takes effect upon the filing of the certificate, as required by the statute.* A subscription upon a sheet of paper, instead of in the lx)ok which the statute provided for, has been held to be valid and binding.^ But it seems that where duplicate sets of iL. 1875, c 611, § .5; 3 N. T. R. S., Sth, ed., p. 1979. 2 See Buffalo & J. R Co. v. Gif- ford, 87 N. Y. 294 (1882). 2 Bouwer v. Appleby, 1 Sandf . (K. Y.) 170 (1847); Yreeland v. New Jersey Stone Co., 29 N. J. Eq. (2 Stew.) 188 (1878); Fanning v. Hiber- nia Ins. Co., 37 Ohio, St. 339 (1881); Pittsburgh & S. R. Co. v. Gazzam, 32 Pa. St. 340 (1858); Galveston Hotel Co. V. Bolton, 46 Tex. 633 (1877); Fothergill's Case, L. R., 8 Cb. App. 270 (1873); Thames Tun- nell Co. V. Sheldon, 6 B. & C. 341 (1827). See Phcenix Warehousing Co. V. Badger, 67 IS'. Y. 294 (1876), and must be such as to constitute a valid and complete contract on both sides. Duchess nothing to rebut that presumption ; and, in an action against^ him as a stockholder, the burden of proving that he is not a stockholder, or of rebutting that presumption, is cast upon the defendant.^ 4. A municipal corporation is competent to subscribe for. stock .2 5. A partner acting within the scope of the partnership business may subscribe for stock in a private corporation and bind the firm thereby.^ Where the act is not within the scope of the partnership business, the firm will not be liable ; but the party signing will be liable personally. Whether or not the subscription is within the scope of the partnership bus^ iness, is a question for the jury.* 6. A corporation cannot subscribe for its own stock>^ 1 Hoaglandv. Bell, 36 Barb.(]Sr.T.) 57 (1861) ; Hamilton & D. Plank Eoad V. Rice, 7 Barb. (N. T.) 162 (1849); Mudgettv. HoyreU, 33 Cal. 25 (1867); Merrill v. Walker, 24 Me. 237 (1844); Coffin v. Collins, 17 Me. 440 (1840); Kockville & W. Turn- pike Road V. Van Ness, 2 Cr. C. C. 451 (1824). 2 Commissioners of Walker v. Devereairx, 4 Paige Ch. (IST. T.) 229 (1833); Sharpless v. Mayor, 21 Pa. St. 147 (1853) ; s. c. 59 Am. Dec. 759. ' Union Hotel Co. v. Hersee, 79 N. Y. 454 (1880); s. c. 35 Am. Rep. 536; Ogdensburgh R. & C. R. Co. v. Frost, 21 Barb. (IST. Y.) 541 (1856); Maltby v. Northwestern Va. R. Co., 16 Md. 422 (1860.) * Union Hotel Co. v. Hersee, 79 N. Y. 454 (1880) ; 8. c. 35 Am. Rep. 536. * Nassau Bank v. Jones, 95 N. Y. 115 (1884); 8. c. 47 Am. Rep. 14; Talmage v. Pell, 7 N. Y. 328 (1852); Central R. & B. Co. v. Smith, 76 Ala. 572 (1884); s. c. 52 Am. Rep. 353; Wheeler V. San Francisco & A. B, Co., 31 Cal. 46 (1866); s. c. 89 Am. Dec. 147; Mechanics' Bank v. Meriden Agency, 24 Conn. 15^ (1855) ; New Orleans Steamship Co. V. Dry Dock Co., 28 La. An. 173: (1876); Franklin Co. v. Lewiston Sav. Bank, 68 Me. 43 (1877) ; s. c. 2S- Am. Rep. 9; Elysville Co. v. Okisko Co., 1 Md. Ch. 392 (1849)? s. c.^ aff'd 5 Md. 152 ; Downing v. Mt, Washington R. Co., 40 N. H. 23*] (1860); First Nat. Bank of Char- lotte V. National Exchange Bank of Baltimore, 92 U. S. (2 Otto) 122 (1875); bk. 23 L. ed. 679; Pearce v. Madison & I. R. Co., 62 U. S. (21- How.) 441 (1858); bk. 16 L. ed. 184 r Sumner v. Marcy, 3 Woodb. & M. C. C. 105 (1847); Royal Bank of India's Case, L. R. 4 Ch. App. 252 (1869); Joint Stock Co. v. Brown, L. R. 8 Eq. 381 (1869) ; Maunsell t. Midland G-t. W. R. Co., 1 Hem. Locke, 1 Q. B. 256 (1841). " Buffalo & Jamestown R. Co. v> Gifford, 87 N. T. 294 (1882); People V. Stockton & V. R. Co., 45 Cal. 306 (1873); s. c. 13 Am. Rep. 176; Har- ris V. McGregor, 29 Cal. 124 (1865); Brownlee v. Ohio I. & I. R. Co., 18 Ind. 68 (1862); Ashtabula & N. L. R. Co. v. Smith, 15 Ohio St. 328 (1864). See Hamilton & D. P. R. Co. V. Rice, 7 Barb. (N. Y.) 157 (1849); Woodruff v. McDonald, 33 Ark. 97 (1878); Mexican Gulf R. Co. 86 IMPLIED PEOMISE TO PAY. Sec. 43k. Same— ImpUed promise to pay.— A subscription to the capital stock of a corporation implies a promise to pay the amount subscribed, and an express promise in terms to pay is not necessary.^ In such a case the subscriber assumes to pay for the stock in the mode prescrilied by^ and according to the conditions of the charter.^ V. Viavant, 6 Rob. (La.) 30.3 (1843); Stuart V. Valley E. Co., 32 Gratt. (Va.) MO (1879). 1 Rensselaer & W. Plaukroad Co. V. Barton, 16 K. Y. 457 note (1854) ; Van Cott V. Van Brunt, 2 Abb. (N. Y.) N. C. 283 (1877); Chouteau V. Dean, 7 Mo. App. 210 (1880); Shickle v. Watts, 94 Mo. 410 (1888) ; s. c. 13 \Vest Rep. 631; 7 S. W. Rep. Dayton v. Borst, 31N'. Y. 435 (1865); Lake Ontario, Auburn & N. Y. E. Co. V. Mason, 16 ST. Y. 451 (1857); Small V. Herkimer Manuf. Co., 2 N. Y. 380 (1849); Northern R. R. Co. V. Miller, 10 Barb. (N. Y.) 260, 268 (1851) ; Beene v. Cahawba & M. R. Co., 3 Ala. 660 (1842); Mitchell v. Beckman, 64 Cal. 117 (1883); Miller Y. Wildcat G. R. Co., 52 Ind. 51 (1875). See Reed v. Eiehmond Street R. Co., 50 Ind. 342 (1875); Nulton V. Clayton, 54 Iowa 42.=) (1880); s. c. 37 Am. Rep. 213; Waukon & M. R. Co. v. Dwyer, 49 Iowa 121 (1878); Mt. Sterling C. Co. V. Little, 14 Bush. (Ky.) 429 (1879); Oill V. Kentucky & C. G. & S. M. Co., 7 Bush. (Ky.) 63.y(1870); Fry T. Lexington & B. S. R Co., 2 Met. :Ky.) 314 (1859^: Dexter & M. P. R. Co. V. Millerd's Mich. 91 (1854); Chase v. E. T., Va. & Ga. R. Co., 5 Lea. (Tenn.) 415 (1880); Merrimac M. Co. V. Levy, 54 Pa. St. 227 (1867); Hawley v. Upton, 102 U. S. (12 Otto) 314; bk. 26 L. ed. 179 (1880); Upton V. Tribilcock, 91 U. S. (1 Otto) 45; bk. 23 L. ed. 203 (1875) ; Webster v. Upton, 91 U. S. (1 Otto) 65; bk. 23 L. ed. 384 (1875). See Seymour v. Sturgess, 26 N. Y. 1.34 (1862) ; Town- send V. Goewey, 19 Wend. (N. Y.) 424 (1838); s. c. 32 Am. Dec. 514; Russell V. Bristol, 49 Conn. 251 (1881) ; Oddfellows Hall Co. v. Gla- zier, 5 Harv. (Del.) 172 (1848) ; Pro- prietors of City Hall v. Dickinson, 72 Mass. (6 Gray) 586 (1856); Essex T. Co. V. Collins, 8 Mass. 292 (1811); New Hampshire C. R. Co. v. John- son, 30 N. H. (1855); s. c. 64 Am. Dec. 300; Stokes v. Lebanon & S. T. Co., 6 Himiph. (Tenn.) 241 (1845). See also Belfast & M. L. R. Co. v. Cotterell, 66 Me. 185 (1876) ; Belfast * M. L. E. Co. V. Moore, 60 Me. 561 (1872); Buckfield Br. R. Co. v. Irish, 39 Me. 44 (1854); Kennebec & P. R. Co. V. Kendall, 31 Me. 470 (1850); Katama Land Co. v. Jeregann, 126, Mass. 156 (1879); Mechanics' F. ) ; Mechanics' Bank V. Merchants' Bank, 45 Mo. 513 (1870); Young v. Vough, 23 N. J. Eq. (8 C. E. Gr.) 325 (1873); Lock- wood V. Mechanics' Nat. Bank, 9 R. I. 308 (1869); Knight v. Old Nat. Bank, 3 Cliff. C. C. 429 (1871); Pen- dergast v. Bank of Stockton, 2 Sawy. C. C. 108 (1871). ' Driscoll V. West Bradley & C. Manuf. Co., 59 N. Y. 96 (1874); Conklin v. Second Nat. Bank, 45 N. Y. 655 (1871); Anglo-Cahfornian Bank v. Grangers' Bank, 63 Cal. 359 (1883) ; Pitot v. Johnson, 33 La. An. 1286 (1881); Carroll v. Savings Bank, 8 Mo. App. 249(1881); Merchants' Bank v. Shouse, 102 Pa. St. 488 (1883); BuUard v. National Eagle CONSTRUCTION AND VALIDITY OF BY-LAWS. 107 A by-law declaring that the ordinary business of the cor- poration may be transacted by a quorum of five directors is a valid regulation, although the whole number consists of twenty-three.^ Sec. 44e. Same— Construction.— In considering by-laws they will be construed reasonably, if possible, without scrutinizing their terms for the purpose of making them void, or holding them invalid if every particular reason for their existence does not appear.^ Where it is not claimed that the by-law is unreasonable, against law or contrary to public policy, the courts must construe and give effect to it in the same manner and upon the same principles that they would construe and give effect to an agreement in writing made and entered into by and between private individuals.^ Sec. 44f. Same— Validity.— The validity of the by-laws of a corporation is purely a question of law to be determined by the court.* Thus it has been held that a reasonable by-law of a corporation regulating the manner of holding meetings, and the election of officers is valid ; ^ so also is a by-law author- izing the members of a corporation to vote at all elections by prox3^^ However, there are cases holding that a stockholder is not entitled to vote by proxy except where authorized to so vote by legislative sanction.^ A reasonable by-law regulating :Bank, 85 U. S. (18 Wall.) .589 (1873); ton, 24 N. J. L. (4 Zab.) 440 (1854) ; bk. 21 L. ed. 923; First Nat. Bank s. c. 61 Am. Dec. 671; Morris & E. V. Lanier, 78 U. S. (11 Wall.) 369 K. Co.v. Ayres,29N. J. L. (5 Dutch.) (1870); bk. 20 L. ed. 172. 392 (1862). 1 Hoyt V. Thompson, 19 N. Y. 207 * In re Long Island R. Co., 19 (1859). ■ Wend. (N. Y.) 37 (1837); Taylor v. 2 Hibernia Fire Engine Co. v. Har- Griswold, 14 ivT. J. L. (2 J. S. Green) rison, 90 Pa. St. 264 (1880) ; Poulters 222 (1834); Kearney v. Andrews, lO •Co. V. Phillips, 6 Bing. (N. C.) 314 N. J. Eq. (2 Stockt.) 70 (1854). <1840). "= State v. Tudor, 5 Day (Conn.) 8 State V. Conklin, 34 Wis. 30 329 (1812); s. c. 5 Am. Dec. 162; (1874) ; In re Dunkerson, 4 Biss. C. People v. Crossley, 69 111. 195 (1873). C. 227 (1868). ' See People v. Twaddell, 18 Hun » State V. Overton, 24 N. J. L. (N. Y.) 427 (1879); Philips v. Wick- (4 Zab.) 435 (1854) ; s. c. 61 Am. ham, 1 Paige Ch. (N. Y.) 590 (1829); Dec. 671. See Compton v. New Taylor v. Griswold, 14 N. J. L. Jersey R. Co., 34 N. J. L. (5 Vr.) (2 J. S. Gr.) 222 (1834). 134 (1870) ; following State v. Over- 108 PROVINCE OF BY-LAWS. the transfer of stock ; ^ a by-law requiring officers and agents who have charge of the corporate funds to give a bond for the faithful performance of their duties, and the like,^ are valid.^ It has been said that a by-law void as against strangers, or non-assenting members of the corporatisn, may be good as a contract as against the assenting members.* Sec. 44g. Same— By-la-w regulating membership. — Defendant was a member of a corporation created under the Laws of New York,^ membership in which was restricted to the members of certain " local assemblies " of the " Knights of Labor " under the jurisdiction of " District Assembly 49." Section 3 of the statute referred to provided for the termina- tion of membership in the corporation by death, volun'tary withdrawal, and expulsion. Under this statute it was held that a by-law which declares that the removal of a local as- sembly from the jurisdiction of District Assembly 49 shall be equivalent to a voluntary withdrawal of all membership in the corporation is in conflict with the statute, and the removal for insubordination, in which defendant took no part, from the jurisdiction of District Assembly 49, of the local assembly of which defendant was a member, will not deprive him of his membership on that ground.^ Sec. 44h. Same — By-law controlling acts of members. — Art- icle 3, §§ 1, 2, of the by-laws of the Musical Mutual Pro- tective Union, which provides that it shall be the duty of 1 Fanners' & M. Bank v. Wasson, Exchange, 9 Mo. App. 290 (1881) ; 48 Iowa 339 (1878); Ciouteau Springs S. c. aff'd 78 Mo. 609. Co. V. Harris, 20 Mo. 383 (1855). ^ See' Slee v. Bloom, 19 Johns. A by-law which, unreasonably inter- (N. T.) 456 (1821) ; s. c. 10 Am. feres with the exercise of the right Dec. 273 ; Cooper v. Frederick, 9 to transfer is void; Quiner v. Marble- Ala. 738 (1846); Amesbury v. Bow- head Ins. Co., 10 Mass. 476 (181-3); ditch Ins. Co., 88 Mass. (6 Gray) -596 Moore v. Bank of Commerce, 62 Mo. (1856) ; Davis v. Proprietors of Meet- 377 (1873). ing House, 49 Mass. (8 Mete.) 321 2 Savings Bank v. Hunt, 72 Mo. (1844). 597 (1880). 5 L. 187-5, c. 207. ^ See People v. Board of Fire ^ New York Protective Ass'n v. Underwriters, 54 How. (N. Y.) Pr. McGrath, (N. Y. Sup. Ot.) 5 N. Y. 240 (1875) ; Goddard v. Merchants' Sup. 8 (1889) ; s. c. 23 N. Y. St. Eep. 209. VOID AND INVALID BY-LAWS. 109 every member to refuse to perform in any orchestra in which are any persons not members in good standing, and that it shall be deemed a breach of good faith between members to employ a suspended or non-inember, or to assist in a public performance given wholly or in part by amateurs, and article 9, § 2, which imposes a penalty for the violation of the fore- going sections, are void, because they are arbitrary and con- trary to the provisions of its charter,^ which declares that its objects are the cultivation of music and the promotion of good feeling among the members of the profession, and the relief of such of their members as should be unfortunate.^ Sec. 44i. Same — By-lavir as to assessments — When void. — A by-law requiring the members of a corporation to pay assess- ments which are not necessary for any lawful or authorized purpose of the company, being in excess of the powers of the directors, is void.^ After the enterprise of the corporation has been abandoned, there being no further use for the capital of such corporation, except for winding up the company's business, no further call can be made upon the stockholders.* Sec. 44j. Same — Invalid by-law^ — Injunction to restrain enforce- ment. — In Thomas v. Mutual Protective Union,^ the plaintiff, a member of a musical union whose void by-laws prohibited any member from employing a non-member or playing in an orchestra with a person not a member, engaged a person not eligible to membership to play in an orchestra which he was conducting. The union instituted proceedings against plaintiff to enforce its by-laws. These proceedings threatened to disperse the orchestra which had been gotten together by the tact, skill, and industry of the plaintiff ; two of its mem- bers actually leaving. The court held, that as irreparable injury was threatened, an injunction should be granted to 1 See L. 1864, c. 168. London Tobacco Pipe Makers' Co. 2 Thomas v. Musical Mutual Pro- v. Woodroffe, 7 B. & C. 83S (1828). tective Union, 49 Hun, (N. T.) 171 *McCully v. Pittsburgh & C. R. (1888); s. c. 2 N. Y. Sup. 195. See Co., 32 Pa. St. 32 (1858). Infra, sec. 44o. '49 Hun, (N. Y.) 171 (1888): S. c. s See Hibemia Fire Engine Co. v. 2 N. Y. Sup. 195. Commonwealth, 93 Pa. St. 264 (1880) ; 110 TTNEEASONABLE BY-LAW. restrain the union from further proceedings to enforce its by-laws. Sec. 44k. Same — By-laTv regulating signing of notes — Lack of secretary's signature.— It was held in Martin V. Niagara Falls Paper Co.,i that " where the by-laws of a corporation pro- viding that the notes of the company should be signed by the secretary, and there was no provision in the by-laws that the lack of the secretary's signature should render the instrument void, the signature of the secretary was not essential to the validity of the notes signed by the president in the name of the company." Sec. 441. Same— Void in part.— It has been held that where a by-law consists of several distinct and independent parts,, and one or more of these parts are void, the rest are equally as valid as though the void clauses had been omitted.^ Sec. 44m. Same — Unreasonable by-la'w void. — All by-laws must be reasonable and not oppressive or vexatious.^ All unequal, oppressive and vexatious by-laws, and those man- ifestly detrimental to the corporation, are void.* Whether or not a by-law is reasonable is a question solely for the court to determine.^ Sec. 44n. Same— By-law inconsistent with general law. — To be valid a by-law must be consistent alike with the constitu- tion and statute laws of the state creating it, or of the state wherein it seeks to exercise its powers,^ and with the general 1 44 Hun (N. Y.) 131, 141 (1887); Lodge v. Hubbell, 2 Strobh. (S. €.)■ s. c. 8 N. Y. St. Rep. 266, 274. 457 (1848) ; s. c. 49 Am. Dee. 604. 2 Shelton v. Mayor of Mobile, 30 ^ Vedder v. Fellows, 20 N. Y. 126 Ala. 540 (18.57). (1859); Intendent of Marion v. s Carter V. Father Matthew Soc, Chandler, 6 Ala. 899 (1844); Com. 3 Daly (K. Y.) 20 (1869); Moore v. v. "Worcester, 20 Mass. (3 Pick.) 473 Bank of Commerce,52 Mo. 377 (1873) ; (1826) ; State v. Overton, 24 N. J. L. State V. Merchants*Exchange, 2 Mo. (4 Zab.) 4.35 (1854); Paxtonv. Sweet, App. 96 (1878); Com. v.Gill, 3 Whart. 13 N. J. L. (1 J. S. Gr.) 196 (1832); (Pa.) 228 (1837) ; St. Luke's Church Reg. v. Fisher, 4 Best & S. 575 (1862) ; V. Matthews, 4 Desaus. (S. C.) 578 Reg. v. Saddlers Co., 10 H. L. Cas. (181.".); s. c. 6 Am. Dec. 619. 404 (1863). < Cartan v. Father Matthew Soc., " Wood v. Brooklyn, 14 Barb. (X. 3 Daly (N. Y.) 20 (1869); Palmetto Y.) 425 (1852); Vance v. Little Rock, 30 Ark. 435 (1875); Livingston %! BY-LAW RBSTEAINING EIGHT TO SUE. Ill piinciples of the common law, or policy of the state,^ and not repugnant to the charter of the corporation, or in excess of the powers as to by-laws granted to such corporation.^ Thus any by-law impairing the obligation of contracts or taking private property for public use without just compensation, and the like, is wholly void.^ And many by-laws have been adjudged void, as in restraint of trade.* Sec. 44o. Same — ByJaiw restricting right to sue. — While it is true that the parties cannot by their agreement deprive the Albany, 41 Ga. 22 (1870) ; Mayor, etc., V. Hussey, 21 Ga. 80 (1857) ; Haywood V. Mayor, &c., 12 Ga. 404 (1853); Il- linois Cent. K. Co. v. Bloomington, 76 111. 447 (187.=)); Indianapolis v. Gas Co., 66 Ind. 396 (1879); Burling- ton V. Keller, 18 Iowa 65 (1864) ; Wal- ker V. New Orleans, 31 La. An. 828 (1879) ; New Orleans v. Savings Bank, 31 La. An. 687 (1879); Cullinan v. New Orleans, 28 La. An. 102 (1876); Shreveport v. Levy, 26 La. An. 671 (1874); s. c. 21 Am.Eep. 553 (1874); State V. Caldwell, 3 La. An. 435 (1848); Kennebec & P. R. Co. v. Kendall, 31 Me. 470(1850); Judson V. Eeardon, 16 Minn. 435 (1871); State v. Hardy, 7 Neb. 377 (1878); Wilkesbarre Hospital v. Luzerne, 84 Pa. St. 59 (1877); Butchers' Benf. Assoc, 35 Pa. St. 151 (1860); Pester- field & Mayor, etc., v. Vickers, 3 Coldw. (Tenn.) 205 (1866); Mayor V. Beasly, 1 Humph. (Tenn.) 232 (1839); Eobinson v. Mayor of Frank- lin, 1 Humph. (Tenn.) 156 (1839); s. c. 34 Am. Dec. 628; United States V. Hart, 1 Pet. C. C. 390 (1817). 1 Philips V. Wickham, 1 Paige Ch. (N. Y.) 590 (1829); People v. Detroit Fire Department, 31 Mich. 466 (1875) ; Carr v. St. Louis, 9 Mo. 191 (1845) ; Kearney v. Andrews, 10 N. J. Eq. (2 Stockt.) 70 (1854); State v. Curtis, 9 Nev. 325 (1874). ''Seneca Co. Bank v. Lamb, 26 Barb. (N. Y.) 595 (1858); People v. Kip, 4 Cow. (N. Y.) 382 (1822); Au- burn Academy v. Strong, Hopk. Ch. (N. Y.) 278 (1824); Philips v. Wick- ham, 1 Paige Ch. (N. Y.) 590 (1829); Sayre v. Louisville, U. B. Ass'n, 1 Duv. (Ky.) 143 (1863) Jay Bridge Co. V. Woodman, 31 Me. 573 (1850); Kennebec & P. R. Co. v. Kendall, 31 Me. 470 (1850) ; Davis v. Meeting House, 49 Mass. (8 Mete.) 321 (1844); People ex rel. Pulford, v. Detroit Fire Department, 31 Mich. 458 (1875); Carr v. St. Louis, 9 Mo. 191 (1845) ; Taylor v. Griswold, 14 N. J. L. (2 J. S. Gr.) 223 (1834); State v. Curtis, £> Nev. .325 (1874); Butchers Associa^ tion, 35 Pa. St. 151 (1860) ; Case of Philadelphia Savings Bank, 1 Whart. (Pa.) 461 (1836); St. Luke's Church V. Mathews, 4 Desaus. (S. C.) 578 (1815); s. c. 6 Ae. Dec. 619; State V. Conklin, 34 Wis. 21 (,'574); First Nat. Bank v. Lanier, 78 IT. S. (11 Wall.) 369 (1870); bk. 20 L. ed. 172; United States v. Hart, 1 Pet. C. 0. 390 (1817;. 8 Stujrvesant v. New York, 7 Cow. (N. Y.) 588 (1827). * Dunham v. Rochester, 5 Cow. (N. Y.) 462 (1826); Cutwater v. Berry, 6 N. J. Eq. (2 Halst.) 64 (1846); Clark v. LeCren, 9 B. & C. 52 (1829); King v. Coopers Co., 7 T. K. 543 (1798). 112 EEPEAL AND NOTICE OP BY-LAW. k courts of their jurisdiction,^ or prevent a person having a claim due upon contracts from pursuing the usual remedies provided by law ; ^ yet there are cases in which it has been held that by-laws providing for redressing grievances and deciding controversies, are valid, and that a corporation may compel the members to resort to the prescribed methods of procedure before invoking the powers of the court.^ But if the statute by-laws make no provision for a tribunal to decide, the question arising between the corporation and its mem- bers, and a member is injured by the failure of the corpora- tion to fulfill its contract or perform its duty, he may maintain an action at law against it.* Sec. 44p. Same— Repeal of by-law.— It has been said that the same body which has power to make has also power to repeal by-laws.^ But it is also true that although the power is reserved to a corporation by its charter to alter, amend, or repeal its by-laws, it cannot repeal a by-law so as to injure rights which have been given and become vested by virtue of such by-law.^ Sec. 44q. Same — Notice of by-laws — 'When presumed. — Mem- bers of a corporation are presumed to have notice of its by-laws without direct proof of that fact.'' Therefore all by-laws not in themselves illegal or requiring the performance 1 Home Insurance Co. v. Morse, Osceola Tribe v. Schmidt, 57 Md. 67X7. S. (20 Wall.) 44-5 (1874); bk. 22 98 (1881); Anacosta Tribe v. Mur- L. ed. 365; Scott v. Avery, 5 H. L. bach, 13 Md. 91 (1858); s. c. 71 Am. Cas. 811 (1856). Dec. 625; Dolan v. Court Good 2 See Spears v. Ward, 48 Ind. 541 Samaritan, 128 Mass. 437 (1880) ; For- (1874) ; Manson v. Grand Lodge, 30 am v. Howard Ben. Assoc. 4 Pa. St. Minn. 509(1883). 519 (1846); Black & White Smith 8 Lafond v. Deems, 81 K. Y. 508 Soc. v. Vandyke, 2 Whart. (Pa.) 309 (1880); White v. Brownell, 2 Daly (1836); s. c. 30 Am. Dec. 263. (N. Y.) .329 (1868); Poultney v. * See Dolan v. Court Good Samarl- Bacliman, 31 Htn (K. Y.) 49 (188-3); tan, 128 Mass. 437 (1880). Baner v. Sampson Lodge, Knights ^Rexv. Ashwell,12 East 22(1810). Pythias, 102 Ind. 262 (1885); s. c. 13 « Kent v. Quicksilver Min. Co., 78 7\m.&Eng. Corp. Cas. 613; Harring- N. Y. 159 (1879); 8. c. 12 Hun, ton V. Workingmen's Benevolent (N. Y.) 53. Assoc, 70 Ga. 340 (1883); s. c. 27 ' Buffalo v. Webster, 10 Wend. Alb. L. J. 438. See Supreme Coun- (N. Y.) 99 (1833); Inhabitants of cU V. Garrigus, 104 Ind. 133 (1885); Palmyra v. Morton, 25 Mo. 93 (1857). SALARY OF OFFICEES. 113 of acts contrary to law, are presumed to be known to the members of the corporation, and must for that reason be deemed binding upon persons who become members of such organization.^ A person dealing with a corporation is not required to take notice of its by-laws ; nor can secret instructions limit the authority of an agent of a corporation as against a third party who deals with the agents in good faith within the scope of his apparent powers.^ Sec. 44r. Same — Failure to provide by-laws for annual elec- tion. — In 1885 the New York legislature passed an act " to protect stockholders of corporations from the wrong doing of directors in certain cases." ^ This act, however, only refers to wrongs which grow out of the neglect of the directors of corporations to adopt a by-law providing for the annual elec- tion required by this act, and the adoption of such a by-law being a pre-requisite to organization, the act of 1885 does not seem to be of any special importance to companies organized under the Business Act. Sec. 44s. Same — Salary of OiBcers — Directors. — In the absence of any express provision or resolution in the constitution or by-laws of a corporation a director is not entitled to any compensation for his official services,* and in case of a director to entitle him to such compensation the by-law or resolution providing for the same must have been passed before his services as such director were rendered,* because a subsequent 1 Coles V. Iowa State Mut. Ins. * See Barril v. Calendar Insulat- Cc, 18 Iowa, 42.5 (1865); Simeral v. ing & Water Proofing Co., 57 Hun, Dubuque Ins. Co., 18 Iowa, 319 (N. Y.) 257 (1S88); s. c. 2 N. Y. (1865); Presbyterian Mut. Assur- Sup. 758; s. c. 19 N.Y. St. Rep. 877; ance Fund v. Allen, 106 Ind. 593 Gill v. New York Cab Co., 48 Hun, (1886); Bauer v. Sansom Lodge, (N. Y.) 524 (1888); s. c. 1 N. Y. Knights of Pythias, 102 Ind. 262 Sup. 202 ; Illinois Linen Co. v. (1885); s. c. 13 Am. & Eng. Corp. Hough, 91 111.63(1878); American Cas. 618; Mitchell v. Lycoming Mut. Central E. Co. v. Miles, 52 111. 174 Ins. Co., 51 Pa. St. 402 (1865). (1869); Manx Perry & Gravel Road 2 See, Merchants' Bk. v. State Bk., Co. v. Branegan, 40 Ind. 361 (1872). 77 XJ. S. (10 Wall.) 650 (1870); bk. 6 gee Lafayette, B. & M. R. Co. v. 19 L. ed. 1020; Minor v. Mechanics' Cheeney, 87 111. 446 (1877); s. c. 68 Bk.. 26*U. S. (1 Pet.) 70 (1828); bk. 111. 570 (1873). Compare, Barstow 7 L. ed. 57. v. City R. Co., 42 Cal. 465 (1871). »L. 1885, c. 489. 114 SALABY OF PRESIDENT. vote to pay a director for his oificial services is without consid- eration, and therefore void.^ A director cannot recover on a quantum meruit for his services as director in the absence of a provision in the con- stitution or by-laws of a corporation* allowing him compen- sation ; ^ and it is well settled that directors cannot make themselves an allowance for their services.^ Sec. 44t. Same— Salary of president.— The president of a corporation is not entitled, in the absence of agreement, to any compensation for his services performed in the discharge of his duties.* In Gill v. New York Cab Co.,^ the plaintiff who was a director of defendant, and as vice-president received a salary, sued for services rendered to defendant out- side his duties as vice-president or director, the court held, that he could not recover in the absence of any understand- ing or agreement to pay him for such extra services.® In the case of Reed v. Hayt,''' it is said that where the president of a corporation has served as such for many years without salary, and advanced to the company considerable sums of money, which it still owes him, the directors have the right to compensate him for said services and advances, by issuing to him, in satisfaction thereof, in good faith, all the shares of stock remaining in the treasury. A president of a corporation, to whom stock had been issued for services and advances, sold his stock, including the shares so issued, to 1 Loan Association v. Stonemetz, 30 N". J. Eq. (3 Stew.) 702, 721 (1879). 29 Pa. St. 534 (1858) ; Carr t. Char- * Barril v. Calendar Insulating L. 1875, c. 611, § 9; 3 N. Y. E. S., " See ante, § 42, 8th ed., p. 1980. 122' NUMBER AND ELECTION. five nor more than thirteen, by a vote of a majority in interest of the owners of the stock issued by said corporation, present in person, or by attorney duly authorized, at a meeting of the stockholders of such corporation called pursuant to such a notice, specify- ing the purpose of such meeting and given to each stockholder, as is prescribed in section five of this act 1 ; and a statement of the change of the number of directors so made, signed and verified by the president or a vice-president of the corporation and by the secretary of the meeting at which the change was made, shall be filed in the office of the secretary of state, and a copy thereof in the office of the clerk •of the county in which the principal business office ■of the company is situated, within ten days after such meeting. A majority of the whole number of directors shall be necessary to constitute a quorum. The secretary shall record all the votes of the cor- poration and the minutes of its transactions in a book to be kept for that purpose. The treasurer shall give bonds in such sums and with such sureties as are required by the by-laws for the faithful dis- charge of his duties. 2 Sec. 48a. Officers of corporation — Duties and liabilities. — Directors and other officers of corporations occupy positions of trust and must act in the utmost good faith. They will not be allowed to deal ^¥ith the corporate funds and property for their private gain. They have no right to deal with themselves aiffl the corporation at the same time, and they must account for the profits made by the use of the corporate assets and moneys made by a breach of trust.^ 1 See ante, § 43. ^Clubb v. Davidson (Mo.), 4. Ky. ■' L. 1875, c. 611, §10, as amended, & Corp. L. J. 161 (1888); Ward v. L. 1881, c. 422, 3 N. T., R. S., 8th Davidson, 89 Mo. 458 (1886); s. c. 1 «d., 1890. S. W. Eep. 846. FAILUBE TO ELECT — HOLDING OVBE. 123 Sec. 48b. Same — Election and acceptance. — In an action by stockholders against the ofiScers of the corporation, to oust the latter from office, the plaintiffs claimed that the capital stock had been illegally increased. It appeared that defend- ants -were the legal officers prior to a meeting of stockholders in 1885, and had managed the affairs of the corporation since its creation. At the meeting in 1885 defendants received votes representing, not only a majority of the capital stock after the increase, but also a majority of the original issue. The court held that the officers were legally eleeted.i Where a person is shown to have been elected as trustee or other officer of a corporation, his acceptance of such office will be presumed in the absence of evidence to the contiary.^ Sec. 48c. Same— Failure to elect.— An intentional neglect on the part of the officers of a corporation to notify and hold the annual election for directors and other officers as required by statute, is such a. violation of the provisions of the charter of the company ap will authorize the court to appoint a receiver and to decree h dissolution of the corporation ^ ; but such failure does not of itself work a dissolution of the corporation, for on the failure to elect the trustees and other officers hold ■over.* Sec. 48d. Same— Holding over. — Where the president or other officers of the corporation are properly elected, they may, with- out any special provisions in the charter to that eifect, hold over until their successors are elected ; and especially is this so where the charter expressly provides that the officers elected by the stockholders "shall continue in office for that year and until others are chosen." ^ Where the term of a iByers v. Rollins, (Colo.) 21 Pac. Doug. (Mich.) 124 (1845); Lehigh Eep. 894 (1889). Bridge Co. v. Lehigh Coal & Nav. 2 TSTimmons v. Tappan, 2 Sween. Co., 4 Rawle (Pa.) 9 (183:5); s. c. 26 (N. Y.) 653 (1870). -A-m- Dec. Ill ; Hardon v. Newton, 3 Ward V. Sea Ins. Co., 7 Paige Ch. 14 Blatchf. C. C. 379 (1878); Morley (N. Y.) 294 (1838). v. Thayer, 3 Fed. Kep. 748 (1880). 4 See Deming v. Puleston, 35 N. T. ^ Olcott v. Tioga B. Co., 27 N. Y. Super. Ct. (3 J. & S.) 309, 312 546, 557 (1863); People ex rel. Faile (1873); Keformed Dutch Church v; v. Ferris, 16 Hun, (N. Y.) 224 (1878). Brandow, 52 Barh. (N. Y.) 236 (1868). See also authorities above cited. Cahill V. Kalamazoo Mut. Ins. Co., 2 124 AUTHOEITY OP OFFICERS PEESTTMED. director or trustee has expired, and no new trustee has been elected and the old trustee acts as trustee, he becomes a trustee defaeto of the corporation and is liable as such.^ Sec. 48e. Same — Acts of officers — Presumption of authority. — It is thought that the performance by the officers of a corpora- tion of an act which the corporation had power to perform is the act of the corporation, and not the mere act of the officers of such corporation ; ^ aud it will always be presumed that the acts which the officers of a corporation continually and usually perform in its behalf, are authorized by its directors.^ If the officers of a corporation jointly exercise a power which presupposes a delegated authority from the members, and their corporate acts show that the corporation must have con- templated the legal existence of such authority, the acts of such officers will be deemed rightful, and the delegated authority will be presumed.* Sec. 48f. Same— Actions against officers. — Independently of statute, a court of equity in New York has no jurisdiction, at the suit of the people, to compel the officers of a private business corporation to refund property of the corporation illegally disposed of.^ Code of Civil Procedure of New York in the chapter regu- lating "Actions Relating to Corporations " ^ provides that an action may be maintained against the trustees of a corporation to compel them to pay over to the corpoi-ation the value of 1 Deming v. Puleston, 55 N. Y. 655 340 (1861). (1873). See Jones v. Barlow, 62 N.Y. *See Olcott v. Tioga R. Co., 27 N. 202, 211, 212 (1875); Reed v. Keese, Y. 559 (1863); s. c. 84 Am. Dec. 298; 60 jST. Y. 616 (1875); Shaler v. Hall Hoyt v. Thompson, 19 N. Y. 208, 219- Quarry Co. v. Bliss, 27 N. Y. 297 (1859) ; Lee v. Pittsburgh Coal & M. (1863); Houghton v. Otis, 21 K. Y. Co., 56 How. (N. Y.) Pr. 373 (1877) j 261 (1860); Sanborn v. Lefferts, 16 afe'd 75 N. Y. 601; Melledge v. Bos- Abb (N". T.) Pr. N. f. 42 (1874.) ton Iron Co., 59 Mass. (5 Cush.) 175 ^Cheever v. Gilbert Elevated (1849); s. c. 51 Am. Dec. 29; Bank Road Co., 43 K. Y. Super. Ct. (11 of United States v. Dandridge, 25 U. J. & S.) 478, 486 (1878). See Life & S. (12 Wheat.) 64 (1827) ; bk. 6 L. ed. Fire Ins. Co. v. Mechanic Fire Ins. 552. Co. of X. Y., 7 Wend. (N. Y.) 31 = People y. Ballard, 3 N.Y. Sup. (1831);>Herzo v. San Francisco, 33 845(1889). Cal. 134 (1867). ^ N. Y. Code Civ. Proc, art. 2, 8Elwell V. Dodge, 33 Barb. (N. Y.) tit. 2, c. 15, § 1784. ACTIONS AGAINST OPPICEES. 125 property disposed of by them in violation of their duties. By section 1782 the action may be brought by the attorney-general in behalf of the people, or by a creditor, trustee or other officer of the corporation. Section 1808 provides that, when the attor- ney-general has good reason to believe that an action can be maintained by the people, he must bring it, etc. Chapter 16, tit. 1, art. 6, § 1986, "Actions in behalf of the People," provides that when an action is brought by the attorney general, on the relation of a person interested, the plaintiff must allege, and the title of the action show, that the action is brought on relation. By section 1972, upon the " Com-* mencement of an Action to Recover Public Property," the title to the property vests in the state. These pro- visions recognize the distinction between actions to protect public rights and those to protect private rights; and, as the state has no interest in the property of private business cor- porations, an action to compel the trustees of a non-resident corporation to pay over to it the value of propertj'- situated in another state, which they have, as alleged, unlawfully trans- ferred, cannot be maintained by the people.-^ The fact that the action was brought on the relation of a trustee is insufficient, where neither the complaint nor the title of the action shows that it was so brought.^ Where the trustees issued stock in payment for property, wliich was worth much more than the par value of the stock, to one who had sold it for several times its par value; the trustees not being in any way interested in the transaction, except to authorize the issue. They also, in good faith, conveyed all of the property of the corporation to another corporation, which transfer was authorized and ratified, by a large majority of ihe stockholders. The court held that, if the state could maintain the action, no case was shown for the interference of the court.^ Sec. 48g. Same. — ^Misfeasance of officer and action of stock- 1 People V. Ballard, 3 N. Y. Sup. 845 (1889). S45 (1889). ' People v. Ballard, 3 N. T. Sup, 2 People V. Ballard, 3 N. T. Sup. 845 (1889). 126 MISFEASANCE AND DEFAULT OF OFFICER. holder.— A stockholder cannot sue an oflScer for injury to corporation property, caused by his misfeasance in ofiSce, unless the corporation refuses to sue, and in that case the cor- poration must be made a party defendant. Tlie New York Code of Civil Procedure,^ providing that the court may deter- mine the controversy, as between the parties, where it can do so without prejudice to the rights of others, or by saving their rights, does not apply. Nor does section,^ allowing a creditor, trustee, director, manager, or other officer of a corporation, having general superientndence of its concerns, to bring an action against the officers to set aside an alienation of corpo- ration property made by them contrary to law, or foreign to the business of the corporation, apply to a stockholder.^ That the action is in tort against an officer who acted on his own responsibility in alienating corporation property, and signed the instrument individually, and not as trustee, does- not alter the lule, as whatever damage plaintiff sustained was. caused by defendant acting officially, and if he was not acting officially, his act was nugatory.* Sec. 48h. Same — Default of officers. — Action by stockholder.— Plaintiff wrote to one W., as president of a corporation in which he was stockholder, -requesting that action should be taken against two of the directors for misconduct and neglect of duty. W. wrote that he had resigned the presidency two years before. There was no evidence that he ever had resigned, and there had been no meeting of the corporation since his election. The two directors were most active in th& management of the company. The court held that these facts were sufficient to entitle plaintiff to sue as a stockholder in his own name.^ A suit for relief for the misappropriation of the funds of a corporation is properly brought by the stockholders, without any demand on the directors to bring such suit, where the complaint alleges that the corporation is under ^the control of 1 N. T. Code Civ. Pro., § 452. * Stromeyer v. Combes, (N. Y. City 2N. Y. Code Civ. Pro., § 1782. C. P. S. T.) 3 N. Y. Sup. 232 (1888). 3 Stromeyer v. Combes, N. Y. City ^ Averillv. Barber, 5.SHun, (N. Y.) C. P. S. T.) 2 N. Y. Sup. 2.32 (1888). 636 (1889); s. c. 6 N. Y. Sup. 255. DUTIES AND LIABILITIES OP DIKECTOES. 127 the defaulting directors, and that such demand would be- useless.^ An averment that the plaintiffs were owners of the stock of the corporation before suit brought, and ever since 1881^ sufficiently alleges ownership of the stock.^ Such suit may be brought by any one or any number of stockholders.^ The directors who are charged with having connived at such defaults are proper parties defendant in such action.* Sec. 48i. Same — Directors — Duties and liabilities and Authority. — It is the duty of directors and trustees of a corporation to manage the affairs of the corporation to the best of their ability in the interest of the stockholders and creditors of the same, and if they wilfully abuse their trust or misapply the funds of the company by which a loss is sustained they are personally liable as trustees to make good such loss ; and they are also liable if they suffer the corporate funds to be lost or wasted by gross negligence or inattention to the duties. of their trust.^ The duties of a director or trustee of a corporation are those of an agent or trustee of a stockholder, and such direc- tors or trustees are subject to the obligations and disabilities incident to such rules.^ 1 Moyle V. Landers, (Cal.) 21 Pac. 40 K. J. Eq. (13 Stew.) 142 (1885);. Rep. 1133 (1889). Ackerman v. Halsey, 37 N. J. Eq. 2 Moyle V. Landers, (Cal. ) 21 Pac. (11 Stew.) 362 (1883) ; Citizens Build- Eep. 1133 (1889). ing, L. & S. Assoc, v. Coriell, 34 N. 8 Moyle V. Landers, (Cal.) 21 Pac. J. Eq.(8 Stew.) 383 (1881); Citizens Rep. 1133 (1889). Loan Assoc, v. Lyon, 29 N. J. Eq. * Moyle V. Landers, (Cal.) 21 Pac. (2 Stew.) 110 (1878); Taylor v. Miami Rep. 1133(1889). Exporting Co., 5 Ohio 162 (1831); 6 See Brinckerhofe v. Bostwick, 88 Springs Appeal, 71 Pa. St. 23 (1872); K. T. 52 (1882); Butts v. Wood, 38 s. c. 10 Am. Rep. 692; Lewis v. St. Barb. (N. Y.) 181 (1862); s. c. 37 Albans I. & S. Wks., 50 Vt. 481 N. Y. 317; St. Mary's Bank v. St. (1878); Mut. Building Fund v. Bos- John, 25 Ala. N. S. 566 (1854); Ver- seiux, 3 Ped. Rep. 817, 835 (1880). Planck V. Mercantile Ins. Co., lEdw. ^uobinson v. Smith, 3 Paige Ch. Ch. (N. Y.) 84 (1831); Robinson v. (N. Y.) 222 (1832); Movius v. Lee, Smith, 3 Paige Ch.(]sr.Y.) 222 (1832); 30 Fed. Rep. 298, 307 (1887). See Board of Com. of Tippecanoe County Butts v. Wood, 37 N. Y. 319 (1867) ; V. Reynolds, 44 Ind. 509 (1873); s. c. Bach v. Pacific M. S. Co., 12 Abb. 15 Am. Rep. 251 ; Wilkinson v. Dodd, (N. Y.) Pr. N. S. 377 (1872) ; Cumber- 128 COMPENSATION OF OFFICERS. The directors of a corporation cannot, even with the consent of the stockholders, discontinue the corporate business and distribute the capital stock among its stockholders, in the absence of any express legislative act conferring such power ; ^ neither have they a power to transfer the entire property of the corporation except its real estate, and invest the pur- chasers with the whole business of the corporation, as against non-consenting stockholders.^ Sec. 48j. Same— Compensation— Auditing bill.— A director who receives a salary as vice-president cannot, in the absence of a special agreement, recover compensation for services outside his duties as director and vice-president.^ Where an officer whose duties do not require any special knowledge, ability, or attention presides at a meeting of the trustees in which a resolution voting him a salary is passed, though he testifies that he did not vote, and it is not recorded that he did, no dissent appearing, the resolution is invalid.* The only testimony that the services were of any value being that of the officer himself, he cannot be held to be entitled to the salary on the quantum meruit? In Butts V. Wood,^ it is held that where a member of aboard of directors of a plank road company, being also the secretary of the board, presents to the board a bill for extra compensation as secretary, he is disqualified to act as director upon the land C. & I. Co. v. Sherman, 30 Barb. "Abbot v. American Eard Rubber (N. Y.) 571 (1859); Verplanck v. Co., 33 Barb. (N. Y.) 584,592 (1861); Mercantile Ins. Co., 1 Edw. Ch. (N. s. c. 20 How. (N. T.) Pr. 204; Ward Y.) 84 (1831); Percy v. Millaudon, v. Sea Ins. Co., 7 Paige Ch. (N. Y.) S La. 568 (1832); State v. Willis, 78 294 (1838). Me. 70(1885); Hodges v. New Eng. '>Qi\\ v. New York Cab Co., 48 Screw Co., 1 R. I. 312 (1850); s. c. Hun, (N. Y.) 524 (1888); s. c. 1 N. 3 R. I. 9 (1853); York & N. M. R. Y. Sup. 202. Co. V. Hudson, ]£ Beav. 485 (1853); 'Ashley v. Kinnan, 18 N. Y. St. Aberdeen R. Co. v. Blaikie, 1 McQ. Rep. 791; (1888); s. c. 2 N. Y. Sup. H. L. Gas. 461 (1851); Benson v. 574. Heathorn, 1 Y. & C. 326 (1842). ^ Ashley v. Kinnan, 2 N. Y. Sup. lAbbott V.American Hard Rubber 574; (1888); s. c. 18 N. Y. St. Rep. Co., 33 Barb. (N. Y.) 584, 592 (1861); 791. S. c. 20 How. (N. Y.) Pr. 204; Ward • 37 N. Y. 317 (1867). v. Sea Ins. Co., 7 Paige Ch. (N. Y.) 294 (1838). TENURE AND KESIGNATION OP DIKECTOES. 129 audit of such bill. It is a general principle that where an interested director must be included to constitute a quorum of the board, the board thus constituted is not qualified to act upon the bill of the interested director so as to bind the corporation.^ And where such board acting under such circumstances audits such bill, any stockholder may sue for himself, and any other stockholder who makes himself a party to prevent a payment of said bills by the treasurer of the ■company.^ Sec. 48k. Tenure of directors — " Or " construed to mean " and ". — Where the by-laws provide that the directors shall "serve for the term of one year, or until such time as their successors .shall be elected," the word " or " must be read as " and," for the intention evidently is, that the trustees shall serve for one year, and thereafter until their successors shall be elected.^ Sec. 481. Resignation of directors.— It has been said that the directors of a corporation, when they find the corpora- tion is insolvent; that its affairs are growing worse every day, and the danger is imminent that the remaining prop- erty will be wasted, leaving the bulk of its creditors unpaid, may lawfully resign for the purpose of securing a fair and equal distribution of the corporate property among its credit- ors, and such resignation becomes effective to vacate the respective offices without any affirmative act of the corpora- tion.* This seems to be the only way in which a fair and equal distribution of the corporate property can be secured, The court say that under the provisions of the new code> creditors whose debts happen to be due may take all the property ; and that " even in cases where the application is made by the directors, for voluntary dissolution,* any creditor who recovers a judgment without the assent of the corpora- 1 Butts V. Wood, 37 N. Y. 317 Y.) Pr. .320 (1883) ; citing Chandler ^1867). V. Hoag, 63 N. Y. 624 (1875) ; Van 2 Butts V. "Wood, 37 N. Y. 317 Amburgh v. Baker, 81 N. Y. 46 (1867). (1880); Sprague v. Dunton, 14 Hun, 3 Chemical Nat. Bank v. Colwell, (N. Y.) 492 (1878). 14 N. Y. St. Kep. 682 (1888). * Under N. Y. Code Civ. Proc, Smith V. Danzig, 64 How. (N. § 2419. a 130 CARE EEQTJIRED OF DIKECTOES. tion,^ will take the property because this court has held that in such a proceeding a temporary receiver cannot be appointed,^ and that the only receivership authorized by law was by final judgment, which must be in less than three months after the commencement of the proceedings.^ Sec. 48m. Same— Care required of directors. — The directors or trustees of a corporation, as we have seen above, stand in a relation similar to that of trustees of the shareholders. Particularly is this true in reference to the management by directors or trustees of the property and general affairs of the corporation;* they are obliged to take the same care and dil- igence in the management of the affairs of the corporation as factors and agents, and are answerable not only for any fraud and gross negligence, but also to all faults that are con- trary to the care required of them.^ It has been said that a trustee or director " must use the same care, skill, diligence, and prudence in the management of the trust and his dealings with the trust property which a man of ordinary care and skill and prudence would in his own transactions, and with his own property, under like circumstances ; and the trustee is answerable for all losses, deficiencies, and injuries which are occasioned by his affirmative or negative violation of this duty." ® In all cases the question to be determined is whether the directors have omitted that care which men of common prudence take in the management of their own concerns." There are some authorities, it is true, wliich hold that trustees are liable only for crassa negligentia, which literally means gross negligence, but that phrase has been deiined to mean 1 N. T. Code Civ. Proc, § 2430. » Scott v. Depeyster, 1 Edw. Ch. 2 Ex parte French Manuf. Co., 12 (N. Y.) 513 (1832); Bank of Mut. Hun, (N. T.) 488(1878); see case of Redemption v. Hill, 56 Me. 388 Open Board o^ Brokers, per Law- (1868). rence, J., K. Y. Special Term, Apr. s gee Scott v. Depeyster, 1 Edw. 1882. Ch. 513(1832); Litchfield v. White, » N. Y. Code Civ. Proc, §§ 2423, 8 Sandf. (N. Y.) 545 (1850); Charit- 2429. able Corporation v. Sutton, 2 Atk. * Scott V. Depeyster, 1 Edw. Ch. 405 (1742). (ST. Y.) 513 (1832); Board of Com. ' See Hun v. Cary, 82 N. Y. 72 of Tippecanoe County v. Lafayette, (1880); s. c. 59 How. (N. Y.) Pr. 443 M. & B. R. Co., 50 Ind. 98 (1875). (1880) DEGKBES OF NEGLIGENCE — LIABILITY. 131 simply the absence of ordinary care and diligence adequate to the particular case.^ Sec. 48n. Same— Degrees of negligence.— There is a still recog- nized and accepted distinction between the degrees of negli- gence of which a trustee or director may be guilty ; a dis- tinction which is said to be " often found of but little practicali importance, when dealt with by a jury on the trial of a cause^ but one which the courts are bound to regard in the determi- nation and application of the rules of law." ^ Sec. 48o. Same — Iiiability for acta of officers. — The directors or trustees of a corporation in the appointment of a secretary and other subordinate oiBcers do not become sureties for their fidelity and good behavior, provided they exercise good care and caution in their selection, but if they select persons to fill subordinate situations who are known to them to be unworthy of trust, or notoriously of bad character, and a loss ensues through the fraud or embezzlement of such subordi- nate officers, the directors or trustees will be personally liable.* The directors or trustees of a corporation are bound to use ordinary care and diligence in the control and management of the officers of the corporation, and are only answerable for such diligence.* Sec. 48p. Same— Liability for loss.— The directors or trus- tees of a corporation will be personally liable as such for all losses sustained because of the willful abuse of their trust or misapplication of the funds of the company by them. They are also liable if they suffer the corporate funds to be wasted or lost through their gross negligence or inattention to the duties of their trust ; ^ but the director or trustee of a corpo- 1 Hun V. Gary, 82 N. T. 72 (1880.) * Scott v. Depeyster, 1 Edw. (N. 2 See Scott v. Depeyster, 1 Edw. T.) Ch. 51-3 (1832). See Charlestown Ch. (N. T.) 513 (1832); French v. Boot & Shoe Co. v. Dunsmore, 60 Buffalo, N. Y. & E. K. Co., 4 Keyes N. H. 86 (1880); March v. Eastern (N. T.) 114 (1868) ; s. c. 2 Abb. App. K. Co., 43 N. H. 516 (1862). Dec. 201. 5 Kobinson v. Smith, 3 Paige Ch. " Scott V. Depeyster, 1 Edw. (N. (N. Y.) 222 (1832). See Brincker- Y.) Ch. 513 (1832). See Gardiner v. hofe v. Bostwick, 88 N. Y. 52 (1882); Pollard, 10 Bosw. (N. Y.) 692 (1863.) Butts v. Wood, 38 Barb. (N. Y.) 181 132 BREACH OP TRUST — REMEDY. lation cannot, in the absence of any fraudulent conduct, «mbezzlement, or misappropriation of funds or realization of profit not in common to all the stockholders, be made to account to the stockholders for losses arising from mismanage- ment, merely, or be made liable for mistake of judgment or_ ■want of skill or knowledge,^ and a director or trustee cannot be required to make good a loss occasioned by the fraud or misconduct of a co-director or co-trustee, in which he had no part, and which was perpetrated without his knowledge or connivance.^ The directors or trustees of a corporation are personally liable to parties injured by their fraudulent breach of trust.^ Sec. 48q. Same — Breach of trust or neglect of duty — Remedy. — Where the trustees or directors of a corporation have become liable because of their wrongful dealings with the corporate property, or wrongful exercise of corporate fi-an- chises, and the like, suits should be instituted in the name of the corporation, and where the corporation either actually or virtually refuses to institute or proceed with such a suit, it may be brought or maintained by a stockholder or stockhold- (1862); s. c. 37 N. T. 317; Board of bans I. & S. Wks., 50 Tt. 481 (1878); Com. of Tippecanoe County v. Rey- Mutual Bldg. Fund v. Bosseiux, 3 nolds, 44 Ind. 509 (1873); s. c. 15 Fed. Rep. 835 (1880). Am. Rep. 251; Scott v. Depeyster, 1 i Spering's Appeal, 71 Pa. St. 11 Edw. Ch. (N. Y.) 513 (1832) ; Ver- (1872); s. c. 10 Am. Rep. 684. See planekv. Mercantile Ins. Co., lEdw". Witters v. Sowles, 31 Fed. Rep. 2 Ch. (N. Y.) 84 (1831); Franklin Fire (1887); Tippecanoe County v. Rey- Ins. Co. Y. Jenkins, 3 Wend. (N. Y.) nolds, 44 Ind. 517 (1873) s. c. 15 Am. 130 (1829); St. Mary's Bank v. St. Rep. 251. John, 25 Ala. (N. S.) 566 (1854) ; 2 gee Robinson v. Smith, 3 Paige Wilkinson V. Dodd, 40 N. J. Eq. (13 Ch. (IST. Y.) 222 (1832); State v. Stew.) 142 (1885); Ackerman v. Hal- Willis, 78 Me. 70 (1885); Ackerman sey, 37 N. g. Eq. (10 Stew.) 362 v. Halsey, 37 N. J. Eq. (10 Stew.) (1883); Citizens' Bldg. Loan & S. 356 (1883); s. C. 38 N. J. Eq. (11 Assoc. V. Coriell, 34 N. J. Eq. (7 Stew.) 501; Hodges v. New England Stew.) .383 (1881); Citizens' Loan Screw Co., 1 R. I. 312 (1850); s. c. Assoc. V. Lyon, 29 N. J. Eq. (2 Stew.) 3 R. L 9 ; Movius v. Lee, 30 Fed. 110 (1878) ; Taylor v. Miami Exports Rep. 307 (1887). ingCo., 5 Ohio 167 (1831) ; Spering's » Smith v. Rathbun, 66 Barb. (N. Appeal, 71 Pa. St. 23 (1872); s. c. Y.) 405 (1873); Robinson v. Smith, 10 Am. Rep. 692; Lewis v. St. Al- 3 Paige Ch. {N. Y.) 222 (1832). FALSE AND DECEPTION STATEMENTS. 133 ers;^ but in order that a suit may be maintained by a stock- holder or stockholders, it must be made to appear that the board of directors, or other managing body, has actually refused to bring suit itself or to permit an action to be brought in the name of the company .^ Sec. 48r. Same— Liability for false and deceptive statements- Misrepresentation, etc. — The directors or trustees of a corpo- ration are liable for false and deceptive statements, misrepre- sentations as to solvency, and the like.^ It has been said that " when a fraud is committed in the name and under the cover of a corporation by persons having the right to speak for it, for their personal gain and benefit, they are bound personally for their wrongful acts. Their tongues uttered the false words and their purses must pay the dam- ages." * The directors or trustees of a corporation are sup- 1 See Robinson v. Smith, 3 Paige Ch. (N. Y.) 222 (1832); Brewer v. Boston Theatre, 104 Mass. 399(1870); Peabody v. Flint, 83 Mass. (6 Allen) 52 (1863); Slattery v. St. Louis & N. O. Transp. Co., 91 Mo. 217(1886); Detroit v. Dean, 106 U. S. (16 Otto) 5.37 (1882); bk. 27 L. ed. 300; Hawes V. Oakland, 104 V. S. (14 Otto) 450 (1881); bk. 26 L. ed. 827; Pond v. Vermont Valley R. Co., 12 Blatch. C. C. 280 (1874). 2 See Young v. Drake, 8 Hun, (N. Y.) 61 (1876);, Rogers v. Lafay- ette Agricultural Works, 52 Ind. 296 (1875); March v. Eastern R. Co., 40 N. H. 548 (1860); Hodges v. New England Screw Co., 1 R. I. 312 (1850) ; Memphis G. Gas Co. v. Williamson, 9 Heisk. (Tenn.) 314 (1872); Jackson v. Ludeling, 88 U. S. (21 Wall.) 616 (1874); bk. 22 L. ed. 492; Davenport v. Dows, 85 U. S. (18 Wall.) 626 (1873); bk. 21 L. ed. 938; Memphis v. Dean, 1Z U. S. (8 Wall.) 64 (1868) ; bk. 19 L. ed. 326; Heath v. Erie R. Co., 8 Blatchf. C. C. 347 (1871); Forbes v. Memphis, E. P. & P. R. Co., 2 Woods C. C. 323 (1872); Mason v. Harris, L. R. 11 Ch. Div. 97 (1879); Menier v. Hopper's Tell. Works, L. R. 9 Ch. App. 350 (1874); Duckett v. Cover, L. R. 6 Ch. Div. 82 (1877); Mac- Dougall v. Gardiner, L. R. 1 Ch. Div. 13 (1875); Atwood v. Merry- weather, L. R. 5 Eq. 464 n, (1867); Benson v. Heathorn, 1 Younge & C- 326 (1842). 8 See Craigie v. Hadley, 99 N. T. 131 (1885); s. c. 52 Am. Rep. 9; Anonymous, 67, N. Y. 598 (1876); Chaffee v. Fort, 2 Lans. (N. Y.) 81 (1869); Oakland Bank v. Wilcox, 60 Cal. 126 (1882); Delano v. Case, 121 111. 247 (1887) ; s. c. 2 Am. St. Rep. 81; 17 111. App. 531. 5 Vreeland v. New Jersey Stone Co., 29 N. J. Eq. (2 Stew.) 188, 195 (1878); Bartholomew v. Bentley, 15 Ohio 659 (1846) ; s. c. 45 Am. Dec. 596; Scale v. Baker, 70 Tex. 283 (1888); 8. c. 8 Am. St. Rep. 592; Bank of Montreal v. Thayer, 2 McCreary C. C. 1 (1881). 134 MISREPKBSENTATIOK. — LIABILITY FOE. posed to know and be familiar with all the facts relative to its conditions and property, and their statements regarding these matters naturally affect public confidence , consequently, if they fraudulently unite in and attempt to deceive the public and by false statement of facts to give^ credit and currency to its stock, they will be liable to those who have been injured by relying upon their representations ; ^ thus where they knowingly issue or sanction the circulation of a prospectus containing false statements as to material facts, the tendency of which false statements is to deceive the public into pur- chasing the corporate stock, they will be liable in damages to any one who relied upon such false statements, to his injury .^ Where the design is to defraud the public generally, any one who has suffered injury by means of such false statements may maintain an action in damages.^ The directors will be liable for misrepresentations in a pros- pectus where they make a material and definite statement of a fact which is false, intending that other persons shall rely upon it, and they do rely upon it and are thereby damaged, — 1. If it is false to the knowledge of the person making it ; 2. If it is untrue in fact, and not believed to be true b}' the person making it ; 3. If it is untrue in fact, and is made reck- lessly, for instance, without any knowledge on the subject, and without taking the trouble to ascertain if it is true or false; 4. If it is untrue in fact, but believed to be true, but without any reasonable gromads for such belief.* 1 See Morgan v. Skiddy, 62 N. T. Court of Canada Eep. 451 (1886); s. 319, 326 (1875); Westervelt v. Dem- c. 15 Am. & Eng. Corp. Cas. 487. arest, 46N. J. L. (17 Vr.) 37 (1884); s'Eaton v. Avery, 83 N. T. 31 s. c. 50 Am. Rep. 400. (1880); s. c. 38 Am. Eep. 389; Com. 2 Morgan v. Skiddy, 62 N. Y. 319, v. Harley, 48 Mass. (7 Mete.) 462 326 (1875); Paddock v. Fletcher, 42 (1844); Bartholomew v. Bentley, 15 > Vt. 389 (1869)fPeek v. Derry, L. R. Ohio, 659 (1846); s. c. 45 Am. Dec. 37 Ch. Div. 541 (1887) ; s. c. 21 596; Bank of Montreal v. Thayer, 2 Am. & Eng. Corp. Cas. 24.3. See McC. C. C. 1 (1881); Compare, Smith V. Chadwick, L. R. 9 App. Cas. Schwenk v. Kaylor, 102 N". Y. 683 187 (1884) ; s. c. 5 Am. & Eng. Corp. (1886). ■ Cas. 23, Edglngton v. Fitzmaurice, * Peck v. Derry, L. R. 37 Ch. Div. L. E. 29 Ch. Div. 4,59 (1885); s. c. 541, 585 (1887); s. c. 21 Am. & Eng. 10 Am. & Eng. Corp. Cas. 78; Petrie Corp. Cas. 243. V. Guelph Lumber Co., 11 Supreme • LIABILITY OF STOCKHOLDEES. 135 Sec. 48s. Same — Liability to stockholders — Parties. — The directors or trustees of a corporation are liable to the stock- holders and creditors of such corporation for a fraudulent breach of trust, and in a suit instituted against them on account of such fraud it is not necessary to make all the directors parties ; ^ because the party injured may recover from any one of them for the whole loss ; ^ and it is there- fore not necessary to make all parties who may more or less have joined iu the act complained of, but the directors and trustees guilty of the frauds and illegal acts injuriously affecting the rights of the plaintiff should be made parties.^ The directors of an incorporated company will not be liable as between themselves and a stockholder, for a loss occurring from error on their part where they are otherwise without fault.* The court hold in Scott v. Depeyster^that any one taking upon himself an office of trust or confidence for the public or another, does not contract for anything more than a diligent attention to its concerns, and a faithful discharge of the duties which it imposes, he is not supposed to have attained infallibility ; and, therefore, does not stipulate that he is free from error. Sec. 48t. Same— Liability to creditors.— Where It appears in a suit brought by creditors of a corporation to enforce the personal liability of the directors under the statute, that at the time the corporation suspended its business, some of the defendants were personally liable for its debts, on account of which they have been since obliged to make advances, they cannot be compelled to pay the whole amount of their liabil- ity without reference to such advances ; but are entitled to have those advances considered as payments made by them on 1 Cunningham v. Pell, 5 Paige Ch. 'Fisher v. World Mutual Ins. Co., (N. T.) 607 (1836). See Scott v. 47 How. (N. T.) Pr. 457, 607 (1873); Depeyster, 1 Edw. Ch. (N. Y.) 513 s. c. 15 Abb. (N. Y.) Pr. N. S. 371; (1832.) Cunningham v. Pell, 5 Paige Ch. 2 Miller v. Fenton, 11 Paige Ch. (N. Y.)607 (1836). (N. Y.) 20 (1844) ; Cunningham v. ^ Scott v. Depeyster, 1 Edw. Ch. Pell, 5 Paige Ch. (K. Y.) 607 (1836) ; (N. Y.) 513 (1832). Attorney-General v. Wilson, 4 Jur. ^ Edw. Ch. (N. Y.) 513 (1832). 1174 (1840). 136 BBLATION or DIKECTOES TO COEPOEATION. , account of their individual liability, and to have them cred- ited thereon as against the creditors of the company since its- dissolution.^ The personal liability of directors is at an end when they have paid or been charged with debts to an amount equal to their liability, for they can be compelled to pay the amount of their liability but once ; and whether they pay that amount voluntarily, in discharge of the debts of the corporation, or whether they are obliged to pay it before suit brought by the corporation, or any of its creditors, after having paid it, they may set up such payment as a defence against any further liability.^ Sec. 48u. Same — Unauthorized business.— If a corporate- company engage in unauthorized and illegal transactions, a stockholder who has knowledge of the same and acquiesces- therein by participating in the results, will not be allowed to charge the directors personally if there be a loss through such transaction.^ Sec. 48v. Same — Relation of directors to corporation. — The relation existing between directors and trustees of a corpora- tion is that of trustee and cestui que trust ; * but it is thought that the relation of the trustees of a religious corporation is not that of a director to a business corporation, or of a pri- vate trustee to his cestui que trust.^ Directors of a corporation are to be looked upon as the bailees of the corporate property; and as such they must answer for ordinary neglect ; and " ordinary neglect " is un- derstood to be the omission of that care which every man of common prudence takes of his own concerns.® Sec. 48w. Same— Delegation of authority.— The managers of a. iTallmadge v. Pishkill Iron Co., 1 Edw. Ch. (N. Y.) 84 (1831); Euro- 4 Barb. (N. T.) 382 (1848). pean & N. A. R. Co. v. Poor, 59 Me. 2Tallmadge v. Fishkill Iron Co., 278 (1871.) 4 Barb. (N. T.) 382 (1848). • s Robertson v. Bullions, UN. T. =Scott V. Depeyster, 1 Edw. Ch. 243 (1854). (N. Y.) 513 (1832). 'Scott v. Depeyster, 1 Edw. Ch. *Buttsv.Wood,37]Sr. V. 317(1867). (N. Y.) 513 (1832). See Verplanck v. Mercantile Ins. Co., BREACH OF TRUST BY DIKKCTOES. 137 corporation may clothe a committee, in the intervals between the sitting of the board, with all their own authority to con- duct the ordinary business of the corporation,^ but it does not follow that the committee can delegate that power to one of their number.^ Sec. 48x. Same — As trustee in dissolution. — The statute de- claring that tlie directors and managers of any corporation shall, upon its dissolution, be the trustees of the creditors and stockholders, expressly limits their liability to the extent of the property and effects that shall come into their hands.^ Sec. 48y. Same — Breach of trust — Assignment of corporate property. — In Conro v. Gray,* the president of a corporation, who was also the principal stockholder, assigned the personal and a portion of the real estate of the corporation to different assignees in trust to pay his individual debts. The court held, that he was guilty of a breach of trust and of a fraud upon the creditors of the company, and that the assignees, by accepting the assignment, might be deemed parties to his breach of trust. 4. director or trustee of a corporation which is insolvent cannot apply the property of the company to the payment of a debt due from the company to him to the ex- clusion of other creditors.^ In those cases where the directors or trustees of a corpora- tion are guilty of a breach of trust, are negligent or fail to perform their duty, an action should be instituted in the name of the corporation , and should the proper officers of such, corporation fail or refuse to institute and maintain such an . action it may be maintained by the stockholder or stock- holders , ^ but it should be made distinctly to appear that the iHoyt V. Thompson, 19 K. T. 216, Co., (111. App.) 5 Ry. & Corp. L. J. 217 (1859). 18 (1888). ^Olcott V. Tioga R. Co., 27 N. T. ^ Robmson v. Smith, 3 Paige Ch. 546,558(1863); s. c. 84 Am. Dee. 298. (N. Y.) 222 (1832). See Brewer v. See ante, § 32 note. Boston Theatre, 104 Mass. 399 (1870) ; 'Hoffman v. Van Nostrand, 48 Peabody v. Flint, 88 Mass. (6 Allen) Barb. (N. T.) 174 (1864); s. c. 28 52(1863); Slattery v. St. Loiiis & N. How. (N. Y.) Pr. 115. O. Transp. Co., 91 Mo. 217 (1880); 4 4 How. (N. Y.) Pr. 165 (1849). Detroit v. Dean, 106 U. S. (16 Otto) 5 Adams v. Crosswood Printing 537 (1882) ; hk. 27 L. ed. 300 ; Hawes 138 NUMBBK OF DIRECTORS IN OPERA GO'S. board of directors or other managing body has actually- refused to bring or to permit an action in its own name.^ Sec. 48z. Same— Criminal liability.— The acts, proceedings or omissions rendering directors of a corporation, formed under the New York Act, liable and the punishment and penalty therefor will be fully treated hereafter in this work. Sec. 49. Same— Number of Directors in Corporations for Opera, etc.— It shall be lawful for any corpo- ration heretofore formed under chapter six hun- dred and eleven, laws of eighteen hundred and seventy-five, for the purpose of establishing a national opera and of promoting a higher musical education in the United States, to have any number of directors, not less than five, and the existing number thereof may be increased by a vote of a majority in interest of the owners of the stock issued by said corporation, present in person, or by attorney duly authorized, at a meeting of the stockholders of such corporation, held pursuant to a notice specifying the purpose of such meeting and given to each stockholder, as is prescribed in said act, and a statement of the change of the number of directors so made shall be signed, verified and filed as provided for in said act. Corpo- V. Oakland, 104 U. S. (14 Otto) 450 v. Dean, 75 U. S. (8 Wall.) 64 (1868); (1881); bk. 26 L. ed. 827; Pond v. bk. 19 L. ed. 326; Heath v. Erie E. Vermont Valley K. Co., 12 Blatcbf. Co., 8 Blatohf. C. G. 347 (1871); C. C. 280 (1874). Forbes v. Memphis, E. P. & P. R. 1 Toung V. Drake, 8 Hun, (K. Y.) Co., 2 Woods C. 0. 323 (1872); Ma- 61 (1870); Rogers v. Lafayette Agri- son v, Harris, L. R. U Ch. Div. 97 cultural Works, 52 Ind. 296 (1875) : (1879); Menier v. Hooper's Tel. March v. Eastefti R. Co., 40 N. H. Works, L. R. 9 Ch. App. 350 (1874); 548 (1860) ; Hodges v. New England Duckett v. Oover, L. R. 6 Ch. Div. Screw Co., 1 R. I. 312 (1850) ; Mem- 82 (1877); McDougall v. Gardiner, phis G. Gas Co. v. Williamson, 9 L. R. 1 Ch. Div. 13 (1875); Atwood Heisk. (Tenn.) 314 (1872); Jackson v. Merryweather, L. R. 5 Eq. 464 n. T. Ludeling, 88 U. S. (21 Wall.) 616 (1867); Benson v. Heathorn, 1 (1874); bk. 22 L. ed. 492; Daven- Younge & C. 326 (1842). port V. Dows, 85 V. S. (18 Wall.) 626 ^ See post, §§ 200-215. <1873); bk. 21 L. ed. 938; Memphis , SUBSCKIPTIONS TO STOCK — ^PAYMENT. 139 rations hereafter formed under said act, for the ■aforesaid purpose, may have any number of directors, not less than five, as the by-laws may provide. i Sec. 50. Same— Quorum.— The number of directors necessary to constitute a quorum, in a corpora- tion organized for such a purpose as aforesaid, shall be fixed by the by-laws,^ Sec. 51. Capital stock— Subscriptions to— When and how payable. — The capital stock of every corpora- tion formed under this act shall be divided into shares of not less than ten dollars, nor more than one hundred dollars each ; and shall in no case exceed five million dollars. All subscriptions there- for shall be made payable to the corporation in such instalments and at such time or times as shall be fixed by the by-laws or by the directors acting under the by-laws ; and if default be made in any payment an action may be maintained in the name of the corporation to recover any instalment which shall remain due and unpaid for the period of thirty days after the time so fixed for the payment thereof ; and no stockholder shall be entitled to vote at any election or at any meeting of the stockholders on whose share or shares any instalments or arrearages may have been due and unpaid for the period of thirty days immediately preceding such election or meeting. The corporation may, by by-laws, prescribe other penalties for a failure to pay the instalments that from time to time become due, not exceeding forfeiture of the stock, and the amount paid thereon, but no such forfeiture shall be declared against any stockholder before demand shall have been made for 1 L. 1886, c. 586, § 1. 2 L, igge, c. 586, § 2, 140 PAYMENT OF CAPITAL STOCK — TIME OP. the amount due thereon, either in person or by a written or printed notice duly mailed to such stock- holder at his last known place of residence, at least thirty days prior to the time when such forfeiture is to take effect ; and provided, further, that upon such forfeiture the shares of stock held by such delinquent stockholder or subscriber shall be sold at public auction, at the office of said corporation, after ten days' notice thereof shall be conspicuously posted up in said oflBce, and the proceeds of such sale, over and above the amount due on said shares, and after deducting the expenses of such sale, if any, shall be paid to the delinquent stockholder or subscriber. Sec. 51a. Payment of capital stock — Misconduct of directors. — The criminal liability of a director of a stock corporation, formed under this act, who concurs in any vote or act of the directors of such corporation, or any of them, by which it is intended to discount or receive any note or other evidence of debt, in payment of any instalment of capital stock actualh^ collected and required to be paid, or with intent to provide the means of making such payment i or to apply any portion of the funds of such corporation, except surplus profits, directly or indirectly to the purchaser of shares of its annual stock ; or receive in exchange for the shares, notes, bonds, or other evidences of debts of such corporation shares of the capital stock, or notes, bonds, or other evidences of debt issued by any other stock corporation will be hereafter treated in this work.^ Sefc. sib. Same— Time of. — The time of the payment of the capital stock of tlfe corporations organized under this act has been extended from time to time.^ The last act provides that the capital stock of any corporation organized since May 1, 1884, as a limited liability company, under the Business Act, iL. 1875, c. 611, § 11 as amended 2 See post, § 206, subds. 3, 5, 7. by L. 1883, c. 102, and L. 1886 c. 579 *, "See h. 1886, c. 579; L. 1888, a 3 R. S., 8th. ed., p. 1981. 447; L. 1889, c. 519. DIRECTOES — SUABILITY TO CREDITORS. 141 may be paid in within one year from and after June 15, 1889, and that the capital stock may be reduced by proceedings authorized by law to be taken within such time. Sec. 51c. Same— Liability to creditors. — The act of 1889 pro- vides that " nothing in this act contained shall be construed in any wise to relieve any such corporation or directors or stockholders thereof from liability to creditors for debts con- tracted before the passage of this act, by reason of failure to pay in its capital, or any part thereof, within the time pre- scribed for the making of such payments by the said act, or to make and file any certificate of such payment.^ Sec. 5ia. Same— Payment in cash.— In the absence of stat- utory provisions stock need not necessarily be paid for in money ; ^ but may be made in good bank checks ; ^ in promis- sory notes, or notes and mortgages ; * in labor or materials ; ^ or in anything else which represents money or money's worth.^ Sec. 51e. Same — Under the Business Corporation Act. — The ten per cent of the par value of the stock subscribed, must be paid in cash.'^ Where the statute authorizing the formation of a corpora- 'L. 1889, c. 519, § 2. Reynolds, 31 111. 490 (1863); s. c. 83 2 Cincinnati I. & C. R. Co. v. Am. Dec. 240; McRae v. Russell, 12 Clarkson, 7 Ind. 595 (1856); Pitts- Ired. (N. C.) L. 224 (1851); Straus burgh & C. R. Co. v. Stewart, 41 Pa. v. Eagle Ins. Co., 5 Ohio St. 59 St. 54 (1861); Fothergill's Case, L. (1855); Andrews, v. Hart. 17 Wis. R. 8 Ch. App. 270 (1873) ; Adamson's 297 (1863). Case, L. R. 18 Eq. 670 (1874). Com- ^ American Silk Works v. Salomon, pare Neuse River Nav. Co. v. 4 Hun, (N. T.) 135 (1875); s. o. 6 T. Comm'rs of Kewbem, 7 Jones (N. & C. (N. Y.) 352; Ohio I. & I. R. C.) 1.. 275 (1859). Co. v. Cramer, 23 Ind. 490 (1864); 8 Crocker v. Crane, 21 Wend. (N. Edwards v. Bringier Sugar E. Co., T.) 211 (1839); s. c. 34 Am. Dec. 27 La. An. 118(1875); Peliatt's Case, 228 ; People v. Stockton & V. R. L. R. 2 Ch. App. 527 (1867)-, Simp- Co., 45 Cal. 306 (1873) ; s. c. 13 Am. son's Case, L. R. 9 Eq. 91 (1869). See Rep. 178; Comins v. Coe, 117 Mass. Simpson's Case, L. R- 4 Ch. App. 45 (1875). 184. ^Ogdensburgh C. & R. R. Co. v. ^East New York & J. R. Co. v. Wooley, 3 Abb. Ct. App. 398 (1864); Lighthall, 36 How. (N. Y.) Pr. 481 Stoddard v. Shetucket Foundry Co., (1868); s. c. 6 Robt. (N. Y.) 407. 34 Conn. 542 (1868); Goodrich v. 'Seeawte, § 43etseg. 142 PAYMENT IN CASH — EBPEESENTATIONS. tion requires its capital stock to be paid in in money, a pay- ment of the full value in any other property, will not suffice to save the corporation from a judgment of dissolution.^ But under a statute authorizing a corporation to receive subscrip- tions to stock payable " in such a manner as the board of directors should direct," the directors have power to receive payment in promissory notes.^ Sec. 51f. Same — Payment in cash — Construction of representa- tion.— A statement that certain capital has been paid in, is tO' be regarded as a representation that it has been paid in cash, and if, in fact, some of the stock has been issued for tha exchange of property, the record is false.^ Sec. 51g. Same— Action to enforce.— An express agreement, to pay is not necessarj^ because the corporation may enforce the personal liability of its members to contribute the amount of capital which they have impliedly agreed to contribute.* 1 People V. Tory House Co., 44 Barb. (N. Y,) 625 (1865). 2 Magee v. Badger, 30 Barb. (N. Y.) 246 (1859). s Pier V. Hanmore, 86 N. Y. 95 (1881). See Bonnell v. Griswold, 89 N. Y. 122, 125 (1882) ; Buffalo & P. E. Co. V. Hatch, 20 N. Y. 157 (1859). ■* See Eensselaer & Wash. P. Road Co. V. Barton, ION. Y. 457 n. (1854); Lake Ontario A. & N". Y. E. Co. v. Mason, 16 N. Y. 451 (1857); Buf- falo & N. Y. City E. Co. v. Dudley, 14 N. Y. 336 (1856); Troy & Bos. E. Co. V. Tibbits, 18 Barb. (N. Y.) 297 (1854) ; Northern E. Co. v. Miller, 10 Barb. (N. Y.) 260 (1851); Mann V. Currie, 2 Barb. (N. Y.) 294 (1848); Hartford & N. H.»E. Co. v. Cros- well, 5 HiU (N. Y.) 383 (1343),- Dutchess Cotton Manuf. v. Davis, 14 Johns. (N. Y.) 239 (1817); s. c. 7 Am. Dec. 459; Goshen & M. Turn- pike Co. V. Hurtln, 9 Johns. (N. Y.) 217 (1812); s. c. 6 Am. Dec. 273; Spear v. Crawford, 14 Wend. (N. Y.) 20, 23 (1835); s. o. 28 Am. Dec. 513; Beenev. Cahawba&M. E. Co., 3 Ala. 660 (1842); Hartford & N. H. E. Co. V. Kennedy, 12 Conn. 514, 516, 523, 524 (1838); Kirksey v. Florida & G. Plankroad Co., 7 Fla. 23 (1857), 8. c. 68 Am. Dec. 426;, Spangler v. Indiana & I. C. E. Co., 21 111. 276 (1859); Peoria & O. E. Co. V. Biting, 17 111. 429 (1856); Klein v. Alton & S. E. Co., 13 111. 515 (1851) ; Nulton v. Clayton, 54 Iowa, 425 (1880) ; s. c. 37 Am. Eep. 213; Wanton & M. E. Co. V. Dwyer, 49 Iowa, 121 (1878) ; Instone v. Frankfort Bridge Co., 2r Bibb (Ky.) 576 (1812); a. c. 6 Am. Dec. 638; Hughes v. Antietam. Manuf. Co., 34 Md. 326 (1870); Car- son V. Arctic Mining Co., 5 Mich. 288 (1858); Dexter & M. Plankroad Co. V. Millerd, 3 Mich. 91 (1854); Grosse Isle Hotel Co. v. I'Ansons Exrs., 42 N. J. L. (13 Vr.) 10(1880); Cheraw & C. R. Co. v. White, 14 S. C. 50 (1880); Essex Bridge Co. v. Tuttle, 2 Vt. 393 (1830); Upton v. Tribilcock, 91 U. S. (1 Otto) 4.> TENDER OF CEKTIPICATE. 143 Sec. 51h. Same— The tender of a certificate.— The tender of a certificate is not necessary to the maintenance of an action to enforce the payment of a subscription,^ because the issuing- of a certificate of shares is not necessary to constitute a subscriber, or a transferee of shares, a stockholder.^ In the recent case of Paducah and M. R. Co. v. Parks,^it is said that an action may be maintained on a subscription to stock without a previous tender of certificates, although the contract of subscription provides that " certificates of stock issue to the said subscribers, as to other other subscribers in said company, upon payment of their subscriptions." Sec. 51i. Same — Provisions of articles of subscription. — It IS thought, however, that where the articles of subscription provide that upon payment being made, certificates of stock shall be delivered to the subscriber, no action can be main- tained to recover the total installments without a tender of the certificates of stock.* (1875); bk. 23 L. ed. 203; Marzetti V. Williams, 1 Bam. & Ad. 415 (1830); s. c. 20 Eng. C. L. 412. Compare, Seymour v. Stm-gess, 26 N. T. 134 (1862); Fort Edward 7 Lans. (N. Y.) 317 (1873); Com- 350(1832), mercial Bank v. Kortright, 22 Wend. 154 TKANSFEE IN BLANK. €xists in favor of a corporation upon the shares of a stock- holder for a debt due him from the corporation ; ^ because a different rule would subvert the wholesome doctrine against secret liens ; ^ such a lien, however, may exist by virtue of a provision in the charter of a corporatign,^ or the by-laws * or in the articles of association.^ Under such a provision the assignee, or whoever succeeds to the right of the shareholder, takes the stock subject to the lien of the corporation.^ Sec. 52s. Same.— Transfer in blank.— Where a transfer of the stock of a corporation is made in blank, it seems that the holder may fill such blank.^ Sec. 52t. Same — Assignment to be entered on books of com- pany.— Where the charter provides that no transfer of stock shall be effectual, except it be entered on the books of the corporation, any transfer made without such entry will never- 1 People V. Crockett, 9 Cal. 112 (1858); Danav. Brown, 1 J. J. Marsh Sec. 62d. Same— In what payable.— In England it is held that dividends must be payable in money ,^ and it has also been said there that the whole of the profits of the corpora- tion must be divided periodically.^ In this country, however, neither of these rules prevail. Here stock and script dividends are very common ; '' and unless there is some obligation, created 1 Jones V. Terre Haute & E. R. Co., 57N.Y. 196(1874); Luling y. Atlan- tic Mut. Ins. Co., 45 Barb (X. Y.) 510 (1865) ; Ryder v. Alton & S. R. Co., 1.3 111. 516 (1851) ; Hoole v. Great Western R. Co., L. R. 3 Ch. App. 262 (1867). ^ Jones V. Terre Haute & R. R. Co., 57 IS". Y. 196 (1874); Luling v. Atlantic Mutual Ins. Co., 45 Barb. (N. Y.) 510 (1865); Hale v. Republi- can River Bridge Co., 8 Kan. 466 (1871) ; Jackson v. I^ewark Plank- road Co., 31 N. J. L. (2 Vr.) 277 (1865); Harrison v. Mexican R. Co., L. R. 19 Eq. 358 (1875). See Beers V. Bridgeport Spr|pg Co., 42 Conn. 17 (1875). s Belfast & M. L. E. Co. v. Bel- fast, 77 Me. 445 (1885), Burt v. Rat- tle, 31 Ohio St. 116 (1876); Emerson V. New York &N. E. R. Co., 14R.L 555 (1884) ; Gordon v. Richmond F. & P. R. R. Co., 78 Va. 501 (1884). See Taft V. Hartford P. & F. R. Co., 8 R. I. 335 (1866). * Painesville & H. R. Co. v. King, 17 Ohio St. 534 (1867) ; Pittsburgh & C. R. Co. V. Allegheny County, 63 Pa. St. 126 (1869) ; Chaffee v. Rut- land R. Co., 55 Vt. 110 (1882); War- ren V. King, 108 U. S. 389 (1882); bk. 27 L. ed. 769. 6 Bardwell v. Sheffield W. W. Co. L. R. 14 Eq. 517 (1872). ^ Stringer's Case L. R. 4 Ch. App. 494 (1869). ' Howell V. Chicago & North- western R. Co., 51 Barb. (N. Y.) 378 (1868) ; State v. Baltimore & O. R. Co., 6 Gill. (Md.) 363 (1847); Rand v. Hubbell, 115 Mass. 461 (1874); Leland V. Hayden, 102 Mass. .542 (1869) ; Lord v. Brooks, 52 N. H. 72 (1872) ; Moss's Appeal, 83 Pa. St. 264 (1877) ; Wiltbank's Appeal. 64 Pa. St. 256 (1870) ; Earp's Appeal, 28 Pa. St. 368 (1857) ; Aldrich v. Howard, 8 R. I. 247 (1865). DIVIDENDS — EIGHT TO. 191 by the charter or by contract, to the contrary it is entirely a matter of discretion with the directors whether any or what dividends shall be declared, and so long as they act in good faith, the courts wUl not interfere even though they may deem their judgment erroneous.^ Sec. 62e. Same— Right to.— All persons who are shareholders at the time dividends are declared are entitled to them, irrespec- tive of the time at which they were earned.^ A^ between the vendor and the vendee of the shares of a corporation, the vendor retains the right to all dividends declared before the sale, and the vendee to all declared thereafter, in the absence of an express contrary agreement between the parties ; and this is also true whether the dividends be payable before or after the consummation of the sale.^ In the case of Hill v. Newichawanick Co.,* the court, in speaking regarding the custom respecting sales of shares of stock at the Board of Brokers in New York, said : " It is understood that sales of stock made at the Board of Brokers in this city, at any time before the day fixed for the closing of the books of transfer of the corporation or company declaring a dividend payable at a future day, carry with them the divi- 1 Kames v. Rochfister & Gen. V. 202 (1879); Hyatt v. Allen, 56 N". Y. R. Co., 4 Abb. (N. Y.) Pr. N. S. 107 553 (1874); s. c. 15 Am. Rep. 449; (1867) ; Luling v. Atlantic Mutual Currie v. White, 45 N. Y. 822 (1871) ; Ins. Co. , 45 Barb. (N. Y.) 510 (1865) ; Hopper v. Sage, 47 N. Y. Super. Ct. Ely V. Sprague, Clarke Ch. (N. Y.)351 (15 J. & S.) 77 (1881) ; Lombardo v. (1840); State v. Bank of Louisiana, Case, 45 Barb. (N. Y.) 95 (1865); 6 La. 745 (1834). Spear v. Hart, 3 Eobt. (N. Y.) 420 ^ See Boardman v. Lake Shore & (1865) ; Brundage v. Brundage, 1 T. M. S. R. Co., 84 N. Y. 157 (1881); & C. {N. Y.) 82 (1873); Bright v. Hyatt V. Allen, 56 N. Y. 553 (1874) ; Lord, 51 Ind. 272 (1875) ; s. c. 19 Am. s. c. 15 Am. Rep. 449; Hill v. New- Rep. 732; City of Ohio v. Cleveland, ichawanick Co., 48 How. (N. Y.) Pr. & T. R. Co., 6 Ohio St. 489 (1856); 427 (1874); aff'g 8 Hun (N. Y.) 459; Black v. Homersham, L. R. 4 Ex. 71 N. Y. 593; Brisbane v. Delaware Div. 24 (1878); Hague v. Dandeson, L. &W. R. Co., 25 Hun (N. Y.) 438 2 Ex. 741 (1848). Compare, Bur- (1881); s. c. 94 N. Y. 204; Manning roughs v. North Carolina R. Co., 67 V. Quicksilver Mining Co., 24 Hun N. C. 376 (1872). (N. Y.) 360 (1881); Cleveland & M. M8 How. (N. Y.) Pr. 427 (1874); R. Co. V. Robbins, 35 Ohio St. 483 aff. 8 Hun (N. Y.) 459, 463; 71 N. (1880). Y. 593. See People v. Assessors, 76 N. Y. 192 DIVIDENDS — TO WHOM PAYABLE. dend so declared, and the price is regulated accordingly. After the books are closed the sales are understood to be ex-divi- dend, and the price is correspondingly affected by the fact that the seller retains and is to collect the dividends." ^ As between the vendor and the vendee the right to receive the dividends upon the shares is not affected by the failure to register the transfer ; but the purchaser will have no legal •claim to such dividends as against the company unless such transfer was properly registered upon the books. ^ Sec. 62f. Same —To whom payable. — Dividends belong to the owners of the stock at the time the dividend is actually de- clared. Where dividends are made to the stockholders of a corporation after the death of the testator they pass to the personal representatives of the decedent ; but where the divi- dends are declared before, although payable after the death of the testator, they pass by the devisees.^ As soon as the profits on shares of the stock of the corpo- ration are ascertained and declared, such profits cease to be the property of the company, and the owner of the shares becomes entitled to the dividend. The fact that the divi- dends are made payable at a future time is immaterial.* Sec. 62g. Same — Right of tenant for life to receive. — The de- cisions of the various states are hopelessly in conflict re- specting and to what extent a life-tenant is entitled to receive dividends of stock ; but the correct doctrine is thought to be that dividends derived from the earnings of the company, no matter where such earnings or profits were realized, belong iSee Hopper v. Sage, 112 N. T. (1874); Bnindage v. Brundage, 65 630, 534(1889); Matter of Kernochan Barb. (N. Y.) 397 (1873); Clapp v. 104 N. Y. 618 (1887); Jermaln v. Astor, 2 Edw. Ch. (N. Y.) 379 (1834) ; Lake Shore & M^S. R. Co., 91 N. Phelps v. Farmers & Mechanics' Bk. Y. 483, 492 (1883) ; Boardman v. Lake 26 Conn. 269 (1857) ; Bright v. Lord, Shore & M. S. R. Co., 84N. Y. 157 51 Ind. 276 (1875); In re Foot, 39 (1881). Mass. (22 Pick.) 299 (1839). 2 See Jermain v. Lake Shore & M. * Hopper v. Sage, 112 N. Y. 530 S. R. Co., 91 N. Y. 484 (1883); Man- 5-34 (1889); Matter of Kernochan, 104 ning V. Quicksilver Mining Co., 24 N. Y. 618, 628 (1887). See Clapp v. Hun (N. Y.) 360 (1881). Aster, 2 Edw. (N. Y.) Ch. 379 (1884). »See Hyatt v. Allen, 56 N. Y. 553 DIVIDENDS — SUIT FOB — WHERE BKOUGHT. 193 to the life-tenant in those eases where the dividends were declared during the existence of his estate, even when the dividends were stock dividends.^ It has been said that where a corporation sells part of its original franchise and property and distributes the proceeds of the same as a divi- dend among its stockholders, as between a life-tenant entitled " to receive all issues, dividends and proceeds accrued " from certain shares of the stock, and a remainderman, such divi- dends will be regarded as capital and not as income.^ Sec. 62h. Same— When suit may be brought for.— A stock' holder cannot sue the corporation for his share of accumu- lated profits until a dividend has been declared, and the declaring of a dividend is a matter within the discretion of the directors, and which the courts will not control.^ Sec. 62i. Same— Rights of non-shareholders. — One who is not a shareholder in a corporation has no right to a decree com- pelling the corporation to declare and pay such dividends as may appear upon an accounting to be proper; nor will a court of equit}'' decree an account of liens on the shares of a 1 Simpson v. Moore, 30 Barb. (N. St. 256 (1870); s. c. 3 Am. Kep. 585; T.) 637 (1859); Clarkson v. Clark- Earp's Appeal, 28 Pa. St. 368 (1857.) son, 18 Barb. (N. Y.) 646 (1855); 2 See Clapp v. Astor, 2 Edw. Ch. Riggs V. Cragg, 26 Hun (N. T.) 89- (N. T.) 379 (1834); Estate of Wood- 103(1881); Cragg v. Kiggs, 5 Eedf. ruff, 1 Tucker (N. Y.) 58(1865); Le- (N. Y.) 82 (1880) ; Scovel v. Boose- land v. Hayden, 102 Mass. 550 (1869) ; velt, 5 Redf. (N. Y.) 121 (1881) ; Peirce v. Burroughs, 58 N. H. 302 Estate of Woodruff, 1 Tucker (X. Y.) (1878); Lord v. Brooks, 52 IST. H. 72 68 (1865); Millen v. Guerrard, 67 (1872) ; Van Doren v. Olden, 19 N. Ga. 284 (1881); s. c. 44 Am. Rep. J. Eq. (4C.E. Gr.) 176 (1868); Bates 720; Richardson v. Richardson, 75 v. Mackinley, 31 Beav. 280 (1862); Me. 570 (1884); s. c. 46 Am. Rep. Johnson v. Johnson, 15 Jur. 714; s. 428; Rand v. Hubbell, 115 Mass. c. 5 Eng. L. & Eq. 164 (1850) ; Murray 461 (1874); s. c. 15 Am. Rep. 121; v. Glasse, 17 Jur. 816(1853); Plumbe Pierce v. Burroughs, 58 N. H. 302 v. Neild. 6 Jur. N. S. 529 (1860); (1878) ; Lord v. Brooks, 52 N. H. 72 Price v. Anderson, 15 Sim. 473 (1847) ; |]872); Van Doren v. Olden, 19 N. Barclay v. Wainewright, 14 Ves. Jr. J. Eq. (4 C. E. Gr.) 176 (1868); V4n- 66 (1807). ton's Appeal, 99 Pa. St. 434 (1882); » Beveridge v. New York El. R. s. c. 44 Am. Rep. 116; Moss' Appeal, Co., 112 N. Y. 1 (1889); s. c. 19 N. E. 83 Pa. St. 264 (1877); s. c. 24 Am. Rep. 489; 20 N. Y. St. Rep. 962. Kep. 164; Wiltbauks' Appeal, 64 Pa. 1(5 194 DIVIDENDS IMPEOPEKLY PAID — EECOVEET. stockholder at the request of a person having no lien on such shares.^ Sec. 62j. Same — Dividends improperly paid — Recovery. — Where dividends have been improperly declared and paid they may be recovered back.^ It is a settled doctrine in this country that the capital stock and property of every corpora- tion constitutes a trust-fund for the benefit of the general cred- itors of the corporation, and such creditors have a lien thereon and a right to prior payment over the stockholders ; ^ conse- quently where the capital stock of a corporation is diverted in whole or in part to the payment of dividends, the creditors of such corporation may follow it into the hands of the stock- holders and recover it back; because the stockholders are affected with notice of the trust character of the capital stock, and cannot claim to occupy the status of hona fide holders.* A single judgment creditor of a corporation, on the return of an execution against it unsatisfied, may main- tain an action against the stockholders and recover back whatever has been received by them as dividends out of the capital stock.^ Sec. 62k. Same— Provisions of penal code — The penal code 1 Berford v. New York Iron Mine, Dummer, 3 Mason, C. C. 308 (1824). 55 N. Y. Super. Ct. (23 J. & S.) 516 « Hastings v. Drew, 76 JST. Y. 9 (1888); s. c. 4 N. Y. Sup. 836; 21 (1879); Proude v. WMton, 15 How. N. Y. St. Rep. 439. (IST. Y.) Pr. 304 (1856); Clapp v. ^Comstock V. Drohan, 71 N. Y. Peterson, 104 111. 26 (1882) ; Peterson. 9 (1877) ; Proude v. Whlton, 15 How. v. Illinois Land & Loan Co., 6 111. (N. Y.) Pr. 304 (1856). App. 257 (1880) ; Lexington Life &c. 'Hastings v. Drew, 76 N. Y. 9 Ins. Co. v. Page, 17 B. Hon. (Ey.) (1879); Bartlett v. Drew, 57 N. Y. 412 (1856); s. c. 66 Am. Dec. 165; 587 (1874) ; Mills v. Stewart, 41 N. Y. Heman v. Britton, 88 Mo. 549 (1885) ; 389 (1869); Crawford v. Kohrer, 59 Nat. Trust Co. v. Miller, 33 JST. J. Md. 599 (1882); «unn's Appeal, 105 Eq. (6 Stew.) 155 (1880). Pa. St. 49 (1884); Bassett v. St. Al- 6 Hastings v. Drew, 76 N. Y. 9 ban's Hotel Co., 47 Vt. 313 (1875); (1879); Sturges v. Vanderbilt, 73 N". County of Morgan v. Allen, 103 U.S. Y. 384 (1878); Bartlett v. Drew, 57 (13 Otto) 498 (1880); bk. 26 L. ed. 498 N..Y. 587 (1874); McLean v. East- Sawyer V. Hoag, 84 U. S. (17 Wall.) man, 21 Hun, (N. Y.) 312 (1880); 610 (1873); bk. 21 L. ed. 731; Burke Brewer v. Michigan Salt Assoc, 58 V. Smith, 83 IT. S. (16 Wall.) 390 Mich. 351 (1885); Williams v. Boice (1872); bk. 21 L. ed. 361; Wood v. 38 N. J. Eq. (11 Stew.) 364 (1884.) DIVIDENDS BY INSOLVENT COMPANY. 195 provides that a director of a stock corporation who concurs in any vote or act of the directors of such corporation, or any of them by which it is intended, 1. To make a dividend except from the surplus profits arising from the business of the corporation, and in the cases- and manner required by law ; or 2. To divide, withdraw, or in any manner pay to the stock- holders, or any of them any part of the capital stock of the corporation, is guilty of a misdemeanor.^ Sec. 63. Dividends by Insolvent company— Directors Liable for Debts.— If the directors of any such corporation shall declare and pay any dividend when the corporation is insolvent, or any dividend the payment of which would render it insolvent, or which would diminish the amount of its capital stock, the directors voting in favor of declaring such dividend shall be jointly and severally liable for all the debts of the corporation then existing, and for all that shall be thereafter contracted while they shall respectively continue in office.^ Sec. 64. Loans to Stockholders Prohibited.— No loan of money shall be made by any such corporation to any stockholder therein, and if any such loan shall be made to a stockholder, the officers who shall make it, or who shall assent thereto, shall be jointly and severally liable to the extent of such loan and in- terest for all the debts of the corporation contracted before the repayment of the sum so loaned.^ Sec. 65. False Certificate or Report— Oiflcers' Liability therefor. — If any certificate or report made, or public notice given, by the officers of any such cor- poration, shall be false in any material representa- 1 N. T. Penal Code, § 494. = L. 1875, c. 611, § 20; 3 N. T. R. 2 L. 1875, c. 611, § 19; 3 N. T. S., 8th ed., p. 1983. U. S., 8th. ed., p. 1883. 196 LIABILITY OF OFFICERS. tion, all the officers who shall have signed the same ;shall be jointly and severally liable for all the debts of the corporation contracted while they are officers thereof.^ Sec. 65a. Who are officers — When statutory liability arises. — The directors of a corporation are officers thereof within the meaning of the above section,^ and their statutory liability under said section arises when they represent in their report, though in good faith, that the capital had been paid in cash.^ Sec. 65b. False report — Liability of trustees or directors and officers.— The officers of a corporation formed under this act are liable for the payments of its debts, when they join in making the annual report, or certificate, and it proves to be false in a material respect;* and it is no defence to a suit to enforce such liability that the director is also a creditor of the company ; ^ or that the defendant signed such report in good faith, under the advice of counsel, and believing its state- ment to be true.® In such an action, where the evidence tends to show that the plaintiff had actual knowledge, the court will not disturb a verdict which finds against him on the issue whether he was guilty of actual falsehood in signing the report.^ It is said in Richards v. Crocker,^ that a director is liable for all the debts of the corporation, while he is director, without limitation as to the amount. " The liability is un- limited because designed to punish the fraudulent act of the officer for making false representations as to the pecuniary condition of the company calculated to deceive the public and induce persons to extend credit to the company, which 1 L. 1875, c. 611, § 21; 3 N..T. K. « Brandt v. Godwin (N. T. City S., 8tli ed., p. 1984. Ct. G. T.) 3 N. Y. Sup. 807 (1889); 2 Brandt v. 6q#win, (N. Y. City Torbett v. Eaton, 17 N. Y. St. Rep. Ct. T. T.) P. N. Y. Sup. 807 (1889); 117 (1888). Torbett v. Easton, 17 N. Y. St. Kep. « Eichard v. Crocker, 19 Abb. (N. 117 (1888). Y.) :S'. C. 73 (1887). 8 Vanlngen v. Whitman, 62 N. Y. « Brandt v. Godwin (N. Y. City 518, 519 (1875). See Torbett v. Ea- Ct. G. T.) 3N. Y. Sup. 807 (1889). ton, 49 Hun, (N. Y.) 209 (1888); s. ' Blake v. Griswold, 103 N. Y. 429 c. 1 N. Y. Sup. 614, afE'd on appeal (1886) ; s. c. 9 K- E. Rep. 434. 113 N. Y. 623; 20 N^. E. Rep. 876. « jg ^bb. (N. Y.) N. C. 73 (1887). FALSE CERTIFICATE — OFFICKES' LIABILITY. 197 they might not have been induced to give if the truth had been made known ; " and to such liability it will not do for the director to say in defence that he is a creditor of the corporation, for that will not excuse a fraud through which another has suffered a pecuniary loss. Sec. 65c Same— Action to enforce liability — Revivor. — It is said by the supreme court of New York in the case of Boyle V. Thurber,! that an action by a creditor of a corporation to enforce the liability of a trustee of a corporation for indebt- edness to him upon the ground that such trustee had signed an annual report of the corporation, which was false in its material statements, cannot be revived, on decease of plaintiff, in favor of his personal representatives, the defendant being discharged, from liability by the death of the creditor.^ Sec. 65d. Same — False certificate — Liability of directbre. — The officers of a corporation issuing false certificates are liable therefor to the assignees of such certificates when they have purchased and hold them in good faith.^ It is said in Nimmons v. Tappan,* that the pendency of an action against all the trustees to enforce their liability for falsely certifying that all the capital had been paid in, is no bar to an action against one of such trustees to en- force his individual liability for a default of the company to file its annual report. Sec. 65e. Same— Criminal liability.— An officer, director, or agent of a company who knowingly concurs in making or publishing a written report of the affairs or pecuniary condi- tion of the company, containing any material statement which is false, is guilty of a misdemeanor.^ Sec. 65f. Same — Limitation of Liability of trustees.— The liability of trustees is limited to those who sign the annual report knowing it to contain a false statement.^ Sec. 65s. Same— Knowledge of falsity.— To render officers 1 50 Hun {H. Y.) 259 (1888); s. c. ^ BrufEv. Mali, 36 N. Y.' 200 (1867). 2 N. Y. Sup. 789; 19 N. T. St. Kep. ■• 2 Sween. (N. Y.) 652 (1870). 881 ; 5 Ry. & Corp. L. J. 10. ' See post, § 208. 2 See Blake v. Griswold, 104 N. Y. ^ Pier v. Hanmore, 86 K. Y. 95 613 ( 1887) ; Brackett v. Griswold, 103 (1881). N. Y, 425 (1886). 198 MEANING OF "FALSE " — PUEPOSE OF MAKING. liable under this section, for all the debts of the corporation, it is not necessary that they have actual knowledge that the representations are false, and are liable, although they were signed in good faith.^ Where creditors of a corporation eevtiij that the stock is fully paid, and the evidence shows that the only payment of stock was made by a transfer of land a^ an enormous advance over the purchase price, and that the debts of the corporation at the time of making the certificate greatly exceeded the purchase price of the land, these facts are sufficient to sustain a finding by the jury tliat the directors knew that the certifi.- cate was false .^ Sec. 65h. Same— Meaning of word " false."— The effect to be given to the word " false, " as it has been used in the statute,* was considered by the court of appeals in Van Ingen v. Whitman,* where it was held not to have been the intention of the legislature to require that the statements used be knowingly, fraudulently false.® Sec. 65i. Same— Purpose of making.— Where the report is false in a material point, and plainly proven to have been known so to be by the officers signing it, it is not necessary to prove the purpose for which the misrepresentation was made, or that any particular fraud was intended.^ It has been said, however, that in order to justify a recovery where the allegation is denied, it must be made to appear on the trial that the return was willfully false ; that is, made intentionally with a purpose to deceive, and the scienter or guilty knowl- edge must be equivalent to mala fides in making the certificate.'^ 1 Torbett v. Eaton, 49 Hun (N. 209 (1888); s. c. 1 N. Y. Sup. 614; Y.)209 (1888); s. c. 1 N. T. Sup. aff'd on appeal 113 N. Y. 623; 20 614; 17 N. Y. St. Rep. 117, aff'd on N. E. Rep. 876. appeal 113 N. Y. §23; s. c. 20 N. E. " PidT v. Hanmore, 86 N. Y. 95, Rep. 876. See Huntington v. At- 104,105(1881). See Bonnell v. Gris- rill, 42 Hun (N. Y.) 459 (1886). wold, 89 N. Y. 122, 125 (1882); Tay. 2 Hatch V. Attrell, 1 N. Y. St. Rep. lor v. Thompson, 66 How. (N. Y.) 497 (1886). Pr. 102, 105 (1883). 8 1.. 1875, c. 611, § 21; 3 N. Y. R. ^ Taylor v. Thompson, 66 How. S., 8th ed., p. 1981, see ante, § 65. (K. Y.) Pr. 102, 106 (1883) ; Stebbins * 62 N. Y. 513 (1875). v. Edmunds, 78 Mass. (12 Gray) 203 « Torbett v. Eaton, 49 Hun (N. Y.) (1858) ; Pier v. Hanmore, 86 N. Y. INDEBTEDNESS — EXTENT OF. 199 Sec. 6Sj. Same— Pleading.— Where the creditor of a corpo- ration seeks to charge a trustee personally with a debt upon the ground that, in pursuance of the statute ^ he signed and caused to be filed an annual report which, as the complaint alleged, was false in a material representation, it is not neces- sary to aver that the transaction was a fraudulent cover for a fictitious payment of the stock, or that the trustees had no actual belief in the value of the land, or no reasonable ground or basis for such belief, and that the issue of the stock for the land was done for the fraudulent purpose of evading the statute, when it is alleged the defendant knew the report to be false when he signed it.^ Sec. 65k. Same— Abatement of action.— The liability of a director under this section abates on the death of the original creditor of the corporation, and cannot be revived in favor of, or prosecuted by personal representatives.^ Sec. 66. Indebtedness not to Exceed Capital Stock — Liability. — If the indebtedness of any such corpo- ration shall at any time exceed the amount of its capital stock the directors of such corporation creat- ing such indebtedness shall be personally and in- dividually liable for such excess to the creditors of such corporation.* Sec. 66a. Indebtedness — Excess of capital stock — Liability of directors. — A statute ^ providing that if the indebtedness of a mining company shall at any time exceed the capital stock paid in, the directors assenting thereto shall be individually liable to the creditors for such excess, applies only to the un- paid creditors, to tlie making of whose debts the directors assented, and directors are not liable to creditors to whose debts they did not assent, although such debts were incurred S5 (1881); Butler v. Smalley, 101 N. 259 (1888); s. c. 2 N. Y. Sup. 789; y. 71, 74 (1885). following Brackett v. Griswold, 103 1 L. 1875, c. 611, § 18; 3 N. T. R. N. Y. 425 (1886). See Blake v. Gris- S., 8th ed., p. 1788, see ante, § 61. wold, 104 N. Y. 613, 616, 617 (1887). 2 Taylor v. Thompson, 66 How < L. 1875, c. 611, § 22; 3 N. Y. R. (N. y.) Pr. 102 (1883). S., 8th ed., p. 1984. 8 Boyle V. Thurber, 50 Hun (N. Y.) « Code Tenn. (Mill & V.) § 1858. 200 DEBT DUB DIKECTOES. to pay off former illegal indebtedijess to which they had assented. In this case it was shown that while defendants were directors, and both present at a meeting, an order was made authorizing one of the dii'ectors to bu}'' machinery in the company's name, provided that two pf the directors named were to " hold the company harmless." Defendants claimed that this order did not express the true action of the board, which was in fact that said two directors should purchase the machinery upon their credit, and upon trial, if it proved satis- factory, they were to receive a royalty from the company for its use. One of the defendants made an admission in contra- diction of this theory. On the other hand, there was proof, that although defendants at first objected to the purchase, iipon the agreement of said two directors to provide th& means to pay for the machinery, they assented. The ma- chinery was shipped in the company's name, used and sold by it, with the knowledge of defendants. The court held that the evidence showed that defendants assented to incur- ring the debt for said machinery.^ Sec. 66b. Same — Liability — Joint and not several. — The indi- vidual liability of the directors under the statute is joint and not several, and to an action brought by the creditor to enforce the liability thereby created, all the directors who are liable must be made parties.^ Sec. 66c. Same — Determining amount of liability — Debt to director.— It is thought that debts owing by a corporation for advances made by one of its directors cannot be included in the debts of such corporation in order to render the directors personally liable for them, upon the ground that suoh debts exceed the capital stock of the corporation.^ Thus it has been held that in determining the amount of the liabilities ^f a company in order to ascertain whether or not they exceed the amount of the capital stock, a judgment 1 See Allison v. Coal Creek & New = Robinson v. Thompson, 20 N. Y. Eiver Coal Co., 87 Tenn. 60(1888); Weelc. Dig. 557 (1885). See Knox v. s. c. 4 Ry. & Corp. L. J. 559. Baldwin, 80 K. Y. 610 (1880); Eas- ^McClave v. Thompson, 36 Hun terly v. Barber, 65 N. Y. 255(1875). (N. Y.) ^65 (1885); s. c. 21 N. Y. Week. Dig. 452. EXECUTORS NOT PERSONALLY LLiBLE FOR CO'S DEBTS. 201 recovered against the company by one of its directors for money advanced by him to it, which judgment has been sub- sequently signed by him to a third person, cannot be treated as one of its liabilities.^ Sec. 66a. Same— Pleadings.— In an action by the creditors of a corporation against the directors thereof to hold them personally liable, because the debts of the corporation created by defendants exceed the amount of its capital stock, it is enough to state the amount of such capital, and to give the amounts of the claims which are outstanding, and it is not necessary that the debts should be due. Where an apparent claim against the corporation is not real, that fact should be set up by answer.^ Sec. 67. Executors, etc., not Personally Liable for Debts of Company.— No person holding stock in any such corporation, as executor, administrator, guard- ian or trustee, and no person holding such stock as collateral security, shall be personally subject to any liability as stockholder of such corpora- tion ; but the person pledging such stock shall be considered as holding the same, and shall be liable as a stockholder accordingly ; and the estates and funds in the hands of such executor, administrator, guardian or trustee shall be liable in like manner, and to the same extent, as the testator or intestate, or the ward or person interested in such trust fund would have been, if he had been living and com- petent to act, and held the same stock in his own name.^ iMcClave v. Thompson, .36 Htin = Robinson v. Attrill, 66 How. (N. (N. T.) 36.5 (1885); s. c. 21 K T. T.) Pr. 121 (1883). Week. Dig. 452; following Easterly ' L. 1875 e. 611, § 23 ; 3 N. Y. R. V. Barber, 65 N. Y. 255 (1875) ; Knox S., 8th ed., p. 1984. V. Baldwin, 80 N. T. 610 (1880). CHAPTER VI. ELECTIONS — VOTING — VOTE OF MAEEIED WOMEN — FAILURE TO ELECT — INSPECTORS OP ELECTIONS — LIABILITY OF STOCKHOLDERS — EXTENSION OF CORPORATE EXISTENCE — TAXATION OP CORPORATION. Sec. 68. Elections— Who may vote at. Sec. 68a. Same— Method of voting. Sec. 68b. Same— Voting by proxy. Sec. 68c. Same— Rejection of proxies. Sec. 68d. Same — Delegation of power. Sec, 68e. Same — Married women — When to vote stock. Sec. 69. Limitation of stockholders — Liability for debts of company. Sec. 69a. Members and stockholders — Liability of stockholders for Sbc. 69b. Same — When creditor's remedy suspended. Sec. 70. Annual election of directors — How and where held. Sec 71. Same — Failure to elect — Directors hold over. Sec. 71a. Same — Fault of officers. Sec. 72. Same — Inspectors of election — Oath of. Sec. 73. Duration of corporate existence. Sec. 74. Taxation — Where corporation taxable. Sec. 74a. Organization of corporations and increase of capital — Tax on. Sec. 74b. Taxation of corporations. Sec. 74c. Same— The personal estate of. Sec. 74d. Same— The real estate. Sec. 74e. Same — Water power. Sec. 74f . Same— Limited state taxation. Sec. 75. Same— What companies liable to taxation. Sec. 75a. System of taxing corporations— Change of statutes. Sec. 75b. "Capital stock"— Definition of phrase. Sec. 75c. Moneyed corporation — Definition of term. Sec. 75d. Cajpital to be assessed at actual value. Sec. 75e. Same— Method of ascertaining value. Sec. 75f. Same— Nominal amount of capital paid in. Sec. 75g. Income not equal to expenditures. Sec. 75h. Surplus earnings and net profits. Sec. 75i. Franchise— Property used in connection with. Sec. 75j. Assessing property without state. Sec. 75k. Non-resident corporations. Sec. 751. Mode of assessing corporations in cities. ANALYSIS OF CHAPTER. 203 Sec. 76. Same— Officers to deliver statements to assessors. Sec. 76a. Corporate statement to assessors. Sec. 76b. Same — Omission to furnish corporate statement. Sec. 76c. Statement and affidavit of owner as to value — Not binding on assessors. Sec. 76d. Improper assessment — Hearing. Sec. 76e. Power to correct errors in assessment. Se(j. 77. Same — To Comptroller. Sec. 78. Same — Penalty for failure to furnish statement. Sec. 78a. Penalty for failui-e to make statement. Sec. 78b. Same— Power of courts to impose other. Sec. 79. Same — Suit for penalty. Sec. 80. Same — Companies how assessed. Sec. 80a. Extension of statute. Sec. 80b. Taxation of capital stock— actual value— exemptions. Sec. 80c. Ascertaining value of capital. Sec. 80d. Same — Rules for fixing value. Sec. 80e. Rules as to taxation— Change of. Sec. 80f. Deduction of indebtedness. Sec. 80g. Stock paid in or secured to be paid in, ^ Sec. 80h. Real estate — How assessed. Sec. 80i. Surplus profits— Definition. Sec. 80j. Same — Assessment. Sec. 80k. Same — Certificates to stockholders for. Sec. 801. No deduction is to be made for losses of capital. Sec. 80m. Commuting taxes. Sec. 80n. Application for reduction. Sec. 80o Same — Deduction of real estate. Sec. 81. Same — How taxes to be stated and collected. Sec 82. Same — Board of supervisors — Return to comptroller Sec. 83. Same — Collector — Demand of payment of tax. Sec. 83a. Certain Counties — Special provisions. Sec. 84. Same — How taxes paid. Sec. 85. Same — Return of collector to treasurer — Affidavit of, demand, etc. Sec. 86. Same — Certificate of treasurer to comptroller. Sec. 87. Same — Comptroller to furnish list to attorney-general — Action in supreme court. Sec. 88. Same — Proceedings on filing petition — Sequestration of property. Sec. 89. Same — Action in other courts. Sec. 90. Annual report to comptroller — When to be made — Where dividend has not been declared — Estimate and appraisal of secre- tary — Certificate of appraisal and copy of oath. Sec. 90a. Constitutionality of statute. Sec. 90b. Tax for state purposes only — Liability for the county or muni- cipal taxes. Sec. 90c. Tax upon foreign corporations — "Carrying and manufactur- ing within this state." Sec. 90d. Taxing franchise. Sbc. 90e. Same — Assailing tax. 20-4 ELECTIONS — WHO MAT VOTE. Sisc. 90f. Same — Correction of errors. Sec. 91. Same — Failure to malce report — Comptroller to add ten per centum — Failure for two years to make annual i-eport — Report to governor. Sec. 92. Same — Annual tax — Amount of. Sec. 92a. Exemptions from taxation. Sec. 92b. Same — Gas-Light Co. ' Sec. 92c. Same— Ice company. Sec. 93. Same — When to be paid. Sec. 94. Same — Lands and real estate of corporation— How taxed — Capital stock exempt. Sec. 95. Same — Basis of tax — Capital employed — What report must state — When comptroller may fix amount. Sec. 96. Same — Pailixre to make report — Examination of books and fixing: tax — Penalty. Sec. 96a. Dissatisfaction of comptroller — Basis of computation. Sec. 96b. Penalty. Sec. 97. When comptroller may issue subpoena — Failure to obey — Punish- ment. Sec. 98. Joint stock company — ^Adjustment of taxes and penalties — ^Wbat covered — Proviso as to payment. Sec. 99. Same — Settlement by comptroller — Notice — Interest. Sec. 100. Same — Settlement of taxes — ^Notice. Sec. 101. Determination of comptroller — Right to review - Sec. 101a. Riglit to review — Writ of certiorari. Sec. 101b. Same — Prior application to assessors. Sec. lOlc. Same — Time of application. Sec. lOld. Same— Form of petition. Sec. lOle. Same— Parties to. Sec. lOlf. Same— Notice of granting. Sec. lOlg. Same— Form of the writ. Sec. lOlh. Same -When to issue. Sec. 1011. Same — To whom should be issued. Sec. lOlj. Same — Return of writ. Sec. 10 Ik. Same — Inclusive of power to take evidence. Sec. 1011. Same — Hearing on return— Proper practice. Sec. 101m. Same — Assessment-roll and affidavit — Failure to return. Sec. lOln. Same — Evidence as to value. Sec. lOlo. Same — Appeal to general term. Sec. lOlp. Same — Appeal to court of appeals. Sec. 102. Same— Jllegal payment of taxes. Sec. 103. Same— Action of comptroller— Review in superior court. Sec. 104. Same— Warrant for collection of taxes— When issued— How en- forced. Sec. 105. Same — Evasion of law — Duty of attorney-general and comptroller. Sec. 68. Elections— Who may Yote at.— Every such executor, administrator, guardian or trustee shall ELECTIONS — METHODS OF VOTING. 205 represent the share or shares of stock in his hands at all meetings of the corporation, and may vote accordingly as a stockholder, and every person who shall pledge his stock as aforesaid, may, never- theless, represent the same at all such meetings and may vote accordingly as a stockholder.! Sec. 68a. Same — Method of voting. — At common law all votes for corporate officers were required to be given in person ; and in the absence of a provision in the charter expressly or by legal implication conferring such power, a by-law giving a right to vote by proxy is repugnant to law and void.^ The only exception to this common law doctrine was in the case of the peers of England, who, by license, obtained from the king, were allowed to make their lords of parliament their proxies to vote for them in their absence.^ In this country it has never been questioned that in all elections in public and municipal corporations, as well as in all other elections of a public nature, every vote must be personally given ; * but in the case of moneyed corporations, instituted for private pur- poses, it has been held that the right to vote by proxy may be delegated by the by-laws of the corporation where the charter is silent upon that subject. Regarding this matter, however, there is a conflict in the authorities.^ In this country the matter is regulated almost entirely by statutes, which provide by express enactment that the stockholders of private corporations may, at all meetings thereof, vote either in person or by proxy appointed in writing.^ iL. 1875,c. 611, § 24; N. T. E. 6 gee State v. Tudor, 5 Day (Conn.) S., 8th ed., p. 1984. 329 (1812); s. c. 5 Am. Dec. 162; 2 Philips V. Wickham, 1 Paige Oh. Brown v. Com., 3 Grant Cas. (Pa.) (isr. T.) 590 (1829); Taylor v. Gris- 209 (1856). wold, 14 N. J. L. (2 J. S. Gr.) 223 " 2 N. Y. Eev. Stat. 400, § 6 (1875); •(1834); s. c. 27 Am. Dec. 33, -37, 40. Comp. Laws Ariz. 515 § 7 (1877); sSeld. Bar. P. 1, c. 1; 1 Bl. Com. Rev. Stats. Colo. 119, § 5; Gen. 168; Angell& Ames ou Corp., § 128. Stats. Conn. 279, § 11 (1875); Laws See Phillips V. Wickham, 1 Paige Ch. of Del. 376, § 2; Const. 111. art. 6, ■(N. T.) 590 (1829). § 3; 1 Eev. Stat. Ind. 620, § 4 (1876); * Dean & Charter of Ferns, Dav. Comp. Laws Kan. 22, § 27a (1879) ; 120 ( ) ; Attorney-General v. Eev. Stats. Me. 394, § 5 (1871) ; Eev. .Scott, 1 Ves. 413 (1750). Code Md. 321, § 52 (1878) ; Gea. 206 ELECTIONS — VOTING BY PROXY. Sec. 68b. Same— Voting by proxy.— The shareholders of A corporation, for the reasons above stated, have no implied right to vote by proxy ; however, it is competent for a cor- poration by a by-law to authorize votes to be cast by proxy j but the right to vote by proxy is not a general right and the party who claims such right must show a special authority for that purpose.^ The power to vote by proxy must be conferred by written evidence of the agent's right to act, and by such as will reasonably assure the inspectors that the agent is acting^ by the authority of the principal ; however, the power of attorney need not be in any particular form, or executed in any particular manner.^ Where a shareholder is represented by proxy at a meeting, he is chargeable with knowledge of the facts connected with the proceedings at that meeting which came to the proxy in his representative capacity.^ Sec. 68c. Same — Rejection of proxies. — It has been said that a proxy is a delegation of authority for a particular purpose, this in the contemplation of the person giving. Where a proxy was given in November and December, 1886, by the governors of an infirmary for a contemplated election between Stats. Mass. 304, § 33 (1860) ; 1 Comp. State v. Tudor, 5 Day (Conn.) 329 Laws Mich. 1148 § 2 (1871) ; Gen. (1812); s. c. 5 Am. Dec. 162; People Stats. Minn. 450, § 160; Eev. Code v. Crossley, 69 111. 195 (1873); Tay- Miss. 530, § 2406 (1871); 1 "Wagner's lor v. Griswold, 14 N. J. L. (2 J. S. Stats., Mo. 289, § 1; 2 Comp. Laws Gr.) 223 (18.34) ; s. c. 27 Am. Dec. Nev. 274, § 5; Gen. Stats. N. H. 280, 33, 37, 40; Hayward Plank Road Co. § 21 (1867); Revn. N. J. 181, § 21 v. Bryan, 6 Jones (N. C.) L. 82 (1877); Gen. Laws New Mex. 204, (1858) , Craig v. Presbyterian Church, §5(1880); IRev.Stats. Ohio, §3245; 88 Pa. St. 42 (1879); s. c. 32 Am. Gen. Laws Oreg. 526, § 7; Purdon's Rep. 417; Brown v. Com., 3 Grant Dig. Pa. 744, § 4; Gen. Stats. R. L Cas. (Pa.) 209 (1856); Queen y. Gov- 291, §3; 1 Stats^enn. 1404(1871); ernment Stock Investment, L. R. Gen. Stats. "Vt. 635, § 43 (1862); 1 3 Q. B.Div.442 (1878); 2 Kent Com. Code Va. 332, § 10 (1860); 1 Eev. 295; Field on Corp., §72. Stats. W. Va. 316, § 44. 2 in re Cecil, 36 How. (N. T.) Pr. 1 Philips V. Wickham, 1 Paige Ch. 477 (1869) ; In re St. Lawrence (N. Y.) 590 (1829); Com. v. Bring- Steamboat Co., 44 N. J. L. (15 Vr.) hurst, 103 Pa. St. 137 (1883); s. c. 529(1882). 49 Am. Rep. 119. See People v. ^ Thomas v. Central City Ins. Co., Twaddell, IS Hun (]Sr. T.) 427 (1879) ; 49 Ala. 577 (1873.) MARRIED WOMEN-WHEN MAY VOTE. 207 E. and C. for the post of surgeon, and the particular election did not take place at that time, because of the retirement of C, the court held that the proxies so given were properly- rejected at a subsequent election in April, 1887, between E. andT. Sec. 68d. Same — Delegation of power. — It has been said that a corporation may, where not inconsistent with its charter, create a select body to whom they delegate the power of electing officers.^ Thug it has been said that a corpo- ration may by by-law give the president power to appoint inspectors of the corporate elections and define the nature of the tickets to be used, and the manner in which they are to be voted.2 Sec. 68e. Same — Married -women — When to vote stock. — It shall be lawful for any married woman, being a stock- holder or member of any bank, insurance company (other than mutual fire insurance companies), manufacturing com- pany, or other institution incorporated under the laws of this state, to vote at any election for directors or trustees by proxy or otherwise, in such company of which she may be a stockholder or member. Sec. 69. Limitation of Stockholder's Liability for Debts of Company.— No stockliolder shall be per- sonally liable for the payment of any debt con- tracted by any corporation formed under this act,, which is not to be paid within two years from the time the debt is contracted, nor unless an action for the collection of such debt shall be brought against such corporation within two years after the debt shall become due ; and no action shall be brought against any stockholder who shall cease to be a stockholder in any such corporation for any debt so 1 Ex parte Willcocks, 7 Cow. (If. ^ Com. v. Woelper, 3 Serg. & K. T.) 402 (1827); Anon., 12 Mod. 225. (Pa.) 29 (1817). See Hex v. Larwood, Skin. 574 » L. 1851, c. 321, § 1; 4 N. T. E. (1694) ; Eex v. Wynn, 2 Barnard 391 S., 8th ed., p. 2602. (1733). 208 LIABILITY OP STOCKHOLDER FOR DEBTS. contracted, unless the same shall be commenced within two years from the time he shall have ceased to be a stockholder in such corporation.^ Sec. 69a. Members and stockholders — Liability of stockholders for debts.— It is said in Richards v. Beach,^ that the above section of the New York laws exempting the stockholders of business corporations organized under that act from liability in certain cases, is identical with section 24 of the act of 1848, except that it omits the provision of the act of 1818 that the stockholders shall not be liable "until an execution issued against the company shall have been re- turned unsatisfied," and that an action could be maintained against the stockholders of a corporation organized under the act of 1875, though no execution had been issued against the company. In an action by a creditor of a corporation to enforce the statutory liability of a stockholder on the ground that his_ subscription is unpaid, the burden of proof is on the creditor to show the fact of non-payment.^ In the case of Mclntyre v. Strong,* which was an action brought against a stockholder upon default of a corporation to pay rent, it was held that a stockholder in said company was liable for the rent, payable within two years from the time of executing the lease, and delivering the premises to the com- pany, but that the rent accruing beyond that time was not a liability that could be enforced against the individual stock- holders. Sec. 69b. Same — When creditor's remedy suspended. — The above section ^ requires that a suit must be brought against the company before the stockholders can be sued, if such suit against the company be brought, the bringing of suit against the stockholder during pendency of that suit would not inter- 1 L. 1875, c. 611 § 25; 3 N. T. K. & Imp. Co., 52 Hun (N. T.) 408 S. 8th ed., p 1984. (1889); s. c. 5 N. T. Sup. 587. 2 5 N. T. Sup. 574 (1889); s. c. 22 * 63 How. (N. Y.) Pr. 43 (1882); N. T. St. Rep. 296. s. c. 48 N. T. Super. Ct. (16 J. & S.) 8 Wellington V. Continental Const. 127; 14 N. Y. Week. Dig. 67. 6 Ante, § 59. DIEECTOES — ANNUAL ELECTION OF. 209 fere with the policy of section thirty-seven of the same act ; ^ but the remedy of the purchaser upon recovering a judgment against the stockholder would be suspended until after judg- ment and execution against the company.^ Sec. 70. Annual Election of Directors— How and Where Held.— The annual election of directors shall be held at such time and place as shall be designated by the by-laws of the corporation, and public notice of such time and place shall be published, not less than ten days previous thereto, in a newspaper published in a city or town in which the principal business office of the corporation is situated, if a newspaper be published therein, and otherwise in the newspaper published nearest to said office ; and the election shall be made by such of the stock- holders as shall attend for that purpose, either in person or by proxy. No person shall be permitted to vote upon the proxy of a stockholder in any such corporation after the lapse of eleven months from the date thereof, unless the stockholder shall have specified therein that it is to continue in force for some longer and limited time. All elections shall be by ballot, and each stockholder shall be entitled to as many votes as shall equal the number of his shares multiplied by the number of directors to be elected, and he may distribute his votes among those to be voted for as he sees fit ; and the persons receiving the greatest number of votes shall be directors, and when any vacancy shall occur among the directors, by death, resignation, or otherwise, it shall be filled for the remainder of the year in such ^ See post, §. . . 866 (1888); afPg s, c. 13 N. T. St. 2 Walton V. Coe, 16 N. Y. St. Eep. Rep. 416. 14 210 FAILURE TO ELECT DIRECTOKS — HOLDING OVER. manner as may be provided for by the by-laws of the said corporation.^ Sec. 71. Same— Failure to Elect— Directors Hold Over» — In case it shall happen at any time that an elec- tion of directors shall not be fhade on the day designated by the by-laws of said corporation, when it ought to have been made, the corporation, for that reason, shall not be dissolved, but it shall be lawful, on any other day within three months thereafter, to hold an election for directors, upon service of notice upon the stockholders thereof respectively in the manner provided in section five of this act ; and all acts of directors shall be valid and binding as against such corporation until their successors shall be elected.^ Sec. 71a. Same— Fault of officers A failure to elect where brought about by the intentional neglect on the part of the ofiScers, is discussed in a former section of this work.^ Sec. 71b. Same— Holding over.— Where an officer is properly- elected he may, without any special provision to that effect, hold over until his successor is elected.* Sec. 72. Same— Inspectors of Election— Oath of.— Every person acting as an inspector of election in any such corporation shall, before entering upon the duties of his office, take and subscribe an oath or affirmation before some officer authorized to administer the same, that he will discharge the duties of his office with fidelity, and that he will not receive any »ote but such as he believes to be legal, nor reject any which he believes to be legal ; and if 1 L. 187.5, c. 611, § 26; 3 N. Y. E. * Olcott v. Tioga R. Co., 27 N. T. S., 8th ed., p. 1984. 546, .557 (1863); s. c. 84 Am. Dec. 2 L. 1875, c. 611, § 27; 3 K T. R. 298; People v. Farris, 16 Hun (N. S., 8th ed., p. 1984. T.) 224 (1878). See ante, sec. 48/. » See ante, § 48g DUIIATION OF CORPORATE EXISTENCE. 211 any such inspector shall violate this oath or affirma- tion, he shall be subject to all the penalties imposed" by law upon inspectors of general state elections in this state violating their duty, and shall be pro- ceeded against in like manner and with like effect.^ Sec. 73. Same— Duration of Corporate Existence — Extension. — Whenever any corporation organized! under this act has fixed the duration of its cor- porate existence for a less period than fifty years, it may, at any time, extend the term of its existence beyond the time mentioned in the original certificate of incorporation, by the consent of the stockholders owning two-thirds in amount of the capital stock of such corporation, in and by -certificate to be signed by such stockholders, in person or by attorney duly authorized and acknowledged or proved, so as to enable it to be recorded, which certificate shall be filed in the office of the secretary of state, and of the clerk of the county in which the principal business office of such corporation is situated, and the said secretary of state and the county clerk, respectively, upon such filing, shall record the same in the record of corporations kept in his office, and make a mem- orandum of such record in the margin of the original certificate in such record book ; and thereupon the time of existence of such corporation shall be ex- tended, as designated in such certificate, for a term which, with the term originally fixed, will not exceed fifty years.^ Sec. 74. Taxation — Where Corporation Taxable.— Every corporation organized under this act shall be 1 L. 1875, c. 611, § 28; 3 N. Y. ^ L. 1875, c. 611, § 29; 3 N. T. S.. S., 8th ed., p. 1985. E- S., 8tli ed., p. 1985. 212 TAXATIOK OF CORPORATIONS. taxed on all of its property, except its real estate, in the town, city or village where its principal busi- ness oflSce is situated ; and on its real estate, in the town, city or village where such real estate is situ- ated shall be taxed therein. ^ Sec. 74a. Organization of corporations and increase of capital — Tax on. — See ante, § 45a. Sec. 74b. Taxation of corporations. — The taxation for state purposes of all corporations organized under the Business Act, except mining or manufacturing companies carrying on manufacturing or mining ores within the state, not including gas companies, is regulated by L. 1880, c. 542, as amended by L. 1881, c. 361; L. 1882, c. 151 ; L. 1885, c. 359; L. 1885, c. 501 ; L. 1886, c. 187 ; L. 1887, c. 284.2 xhe only change made by the Laws of 1887 was to add to the list of corpora- tions exempted from the provisions of the law companies formed under chapter 112 of the Laws of 1851, entitled " An Act for Incorporation of Building, Mutual, Loan and Accu- mulating Fund Associations." Sec. 74c. Same— The personal estate of every incorporated company liable to assessment on its capital shall be assessed in the town or ward where the principal office or place of transacting the financial concerns of the company is located ; but if such company have no principal office or place for transacting its financial concerns, then in the town or ward where the operations of such company shall be carried on.^ Sec. 74d.— Same— The real estate of all incorporated com- panies liable to taxation shall be assessed in the town or ward in which the same shall lie, in the same manner as real estate of individuals.* 1 L. 1875, c. 611, § 30; 3 N. T. Commissioners of Taxes, 28 Barb. (N. E. S., 8th ed., p. 1985. T) 818, 820 (1858). See post, sec. 76. 2 See post, §§90-103. * People ex rel., &c., v. Cassity, 8 People V. Board of Assessors, 39 46 N. Y. 46, 52 (1871); People ex Jf. Y. 82 (1868); Oswego Starch rel. Citizens' Gas Light Co. of Brook- Factory V. Dolloway, 21 J^'. Y. 449, lyn v. Assessors of the City of Brook- 452 (1860); Mut. Life Ins. Co. v. lyn, 39 If. Y. 81 (1868); Oswego TAXING FOREIGN CORPORATION. 213 The mains of a gas company under the streets of the city cannot be regarded as real estate under the statute for the purposes of taxation.^ Sec. 74e. Same— Water-power.— A corporation owning and renting water-power in one district, held properly assessed in another district where its treasurer's office was.^ Sec. 74f. Same — Foreign corporation — " Doing business within the state." — The defendant's president, secretary and treasurer had their offices in New York City, its directors held their annual meetings there, and all its dividends were paid there. While most of its business was done in Utah and Chicago, its silver bullion was all sent to New York and sold there, the proceeds deposited, and some portion loaned and other portions paid out for the company's purposes in that city. The court held that the defendant was " doing business in this state " within the meaning of the New York statute, and for that reason was liable to taxation under it ; that it was not essential to such liability that the whole business of the cor- poration should be done within the state ; that while, it might be, the having an office where meetings of its directors are held, transfer books kept, dividends declared and paid, and other business merely incidental to the regular business of the company is done, and an occasional business transaction in the state would not bring it within the act ; yet, where it appeared, as in this case, that in addition a substantial part of the regular business of the company was carried on here, it was sufficient, and defendant was liable.^ Sec. 74g. Same— Limited to state taxation.— It has been held that chapter 542 of the Laws of 1880, applies only to state taxation, and that the exemption of corporations in section eight extends only to that portion of taxes which is imposed for state purposes, and does not embrace an exemption from Starch Factory v. DoUoway, 21 N. ^ People ex rel. Oswego Canal Co. Y. 449, 452 (1860); Assurance Co. v. v. City of Oswego, 6 T. & C. (N. Y.) Commissioners of Taxes, 17 How. 673 (1875). (N. Y.) Pr. 206, 208 (1858). ^ People v. Horn Silver Mining 1 People ex rel. v. Board of As- Co., 105 N. Y. 77 (1887). sessors of the City of Brooklyn, 39 N. Y. 81 (1868). 214 WHAT COMPANIES TAXABLE. I taxation for local purpose ; this statute does not repeal former laws of the statute on the subject of taxing corpora- tions, including the act of 1880, are in pari materia, and must be read together.^ Sec. 75. Same— What companies liable to taxation. All moneyed or stock corporations deriving an income or profit from the capital or otherwise, shall be liable to taxation on their . capital in the manner herein- after prescribed.2 Sec. 75a. — System of taxing corporations — Change of statutes. — The system of taxing corporations has been changed in important particulars in the following years : 1830, 1853, 1857. The dates affixed to the cases cited serve as an approximate clue to the statutes involved.^ Sec. 75b. "Capital stock" — Definition of phrase. — The ex- pression "capital stock" is frequently used in a sense to denote the funds possessed by the institution upon which it transacts its business in the same manner in which we speak of the capital of a merchant, which is frequently called his stock in trade or his capital stock, and it is thought that it is in this sense that it is used in the above statute.* Sec. 75c. Moneyed Corporation — Definition of term. — The term " moneyed corporation " is said to mean every corpora- tion having banking powers or having the power to make ' People ex rel. jSTational Freight 32 Barb. (N. Y.) 509 (1860); Sun & Lighterage Co. v. Commissioners Mut. Ins. Co. v. Mayor, &c., of New of Taxes & Assessments, 3 X. Y. York, S Barb. (N. Y.) 450, 453 (1850); Month. L. Bull. 4 (1880). People ex rel. Lincoln v. Assessors 2 2 N. Y. K. S., 8th ed., 1149, § 1. of Town of Barton, 29 How. (N. Y.) See Davis' System of Taxation, 88 et Pr. 371 (186-5); People v. Commis- seq. • sioners of Taxes, 20 How. (N. Y.) 8 See In Matter of MeMahon v. Pr. 182, 184 (I860); Sandford v. Su- Palmer, 102 N. Y. 176, 186 (1886); pervisors of N. Y., 15 How. (N. Y.) People ex rel. v. Barker, 48 N. Y. 172 (1858). Seeposi, § 806. 70, 79 (18T1); People ex rel., &c., v. * Howland v. Edmonds, 24 N. Y. Cassity, 46 X. Y. 46, 52 (1871); Peo- 307 (1862). See Oswego Starch Fac- ple ex rel. v. Board of Supervisors, tory v. DoUoway, 21 N. Y. 449 (1860); 13 X. Y. 424 (1857); People ex rel. v. People v. Commissioners of Taxes, Commissioners of Assessment, &c., 23 X, Y. 192, 219 (1861). METHOD OF ASCERTAINING VALUE. 215 loans upon pledges of deposits, or authorized by the law to make insurances. But this is thought not to be a general definition, and that which was not intended to the corpora- tions embraced by the 4th title of the chapter relative to the title assessment of taxes.^ Sec. 75d. Capital to be assessed at actual value. — It is said ill People ex rel. v. Commissioners of Taxes,^ that the capital stock of a corporation is to be assessed at its actual par value, whether more or less than its nominal amount, deducting, how- «ver, from such actual value the assessment value of its real estate and shares owned by it in other taxable corporations, and also from its surplus or reserved fund, if any, an amount not exceeding ten per cent of its capital.^ Under this section it is thought that the capital stock of a company is to be taken as the amount of the personal estate of the corporation for which it is to be taxed, whether it has been impaired by laws or increased by 'accumulated profits.* It is said in the case of the City of Utica v. Churchill,^ that under the former system of tax laws contained in the revised statutes, whether a corporation had lost part of its capital or had added to its assets by an accumulation of profits, did not in any manner affect the amount for which it was taxable.^ Sec. 75e. Same — Method of ascertaining value. — The method of ascertaining the actual value of the land assessed is left to the judgment of the assessors, and they have a right to resort to any and all the tests and measures of value which are ordi- ' Mutual Ins. Co. of Buffalo v. * People ex rel. v. Commissioners Supervisors of Erie Co., 4 N. Y. 442, of Taxes, 23 N. Y. 193 (1861) ; citing 444 (1851). Bank of Utica v. City of Utica, 4 2 104 N. Y. 240, 243 (1887). Paige Ch. (S. Y.) 399 (1834). 8 Citing People ex rel. v. Coleman, ^ 33 jj-. y. lei, 239 (1865). 107 N. Y. 541, 543 (1887) ; I'eople ex « Citing Oswego Starch Factory v. rel. 23d St. v. Commissioners of Dolloway, 21 N. Y. 449 (1860) ; Taxes, 95 N. Y. 554 (1884) ; Oswego Farmers' Loan & Trust Co. v. City Starch Factory v. Dolloway, 21 N. Y. of New York, 7 Hill (N. Y.) 261 449(1860). See People ex rel., &c., (184.3) ; People v. Board of Super- V. Commissioners of Taxes, 64 How. visors of Niagara County, 4 Hill {N. Y.) Pr. 405 (1883) ; People v. (N. Y.) 20 (1842); Bank of Utica v. Commissioners of Taxes, 31 Hun City of Utica, 4 Paige Ch. (N. Y.) Walton v. Coe, 110 N. Y. 109 (1888); aff'g s.c. 47 Hun (KT. Y.) 160. (1888); 8. c. 17 N. E. Rep. 676, = AVheelerv. Millar, 90 N. Y. 353 298 PAYMENT IN PtTLL BY STOCKHOLDEE. Payment in good faith by a stockholder of the entire amounts of his statutory liability under this section, to a creditor of the company after the action brought is a good defence to an action by another creditor of the company to enforce the stockholder's liability, although the latter action was commenced before the payment was made, because the commencement of the action creates no lien upon the stock- holders of the property .1 A creditor of a corporation does not acquire any lien by the commencement of an action against a stockholder of the -corporation to recover the amount of his liability, and the payment by the stockholder, of the full amount of his lia- bility to a creditor of the corporation, absolutely releases him from liability, whether the payment was made before or after the commencement of the action.^ It is thought that where a creditor brings an action not for his sole benefit, but inequity, for the benefit of all the creditors, other creditors may be en- joined from the prosecution of action already begun against single stockholders, and if the debts are in excess of the liability of all the stockholders, the fund secured will be divided ratably among the creditors without any preference to those who may have first sued at law. Such return does not prescribe the period at which the statute of limitations begins to run against an action based on "the 14th, 18th, and 21st sections of this act.^ Sec. 123n. Same — " Limited liability " company. — It Seems that the stockholders of a limited liability company cannot be (1882), though guilty of no dereliction 568 (1872), to same effect Manville v. of duty; Richards v. Crocker, 19 Roever, 11 Mo. App. 317 (1883) ; Abb. (N. T.) N. C. 73 (1887). State Savings Association v. Kellogg, 1 Richards v. Erice, 16 N. Y. Civ. 63 Mo. 540 (1876). See Young v. Proc. Rep. 398^404 (1889); s. c. 3 Bryce, 3 N. T. Sup. 123, 125(1888). N. Y. Sup. 941 (1889), following 2 Richards v. Brice, 16 N. Y. Code "Walton V. Coe, 110 N. Y. 109; s. c. Civ. Proc. Rep. .398, 404 (1889); 17 N. E. Rep. 676, and citing Mathez citing Mathez v. Neidig, 72 N. Y. 100 V. Neidig, 72 N. Y. 100 ( 1878) ; Garri- ( 1878) ; Stover v. Flack, 30 N. Y. 64 son V. Howe, 17 N. Y. 458(1858); (1864). Pfohl V. Simpson, 74 N. Y. 137 » Cochran v. Smith, 54 N. Y. (1878) ; Chambers v. Lewis, 28 N. Y. Super. Ct. (22 J. & S.) 121 (1886). 454 (1863); Weeks v. Love, 50 N. Y. EVIDENCE OF GOODS SOLD — EEFEEENCE. 299 sued by a -creditor of the company for unpaid subscriptions or on account of unpaid capital stock, until the creditor has first exhausted his remedy against the corporation by recovery of judgment and the return of an execution unsatisfied. ^ Thus in Young v. Brice,^ decided at the New York City Court Special Term, June, 1887, it was held under this rule that where the complaint shows that the plaintiff's judgment against the corporation was recovered after the action brought by him against the stockholder, and the answer shows that prior to the recovery of the judgment, although after action brought, such stockholder had paid the full amount of liability to another judgment creditor of the corporation, who had brought an action against him, that the answer set up a good defence. It is said in Taylor v. Attrill,^ that an action brought against a director of a limited liability company to recover a debt due from the corporation upon the ground that the defendant had made and recorded a false certificate to the effect that the capital stock had been paid up in full is a local one and must be tried in the county where the cause of action arises.* Sec. 123o. Same— Evidence— Goods sold.— It is said in Claflin v. Drake,^ that where the plaintiff has recovered a judgment against a limited corporation for goods sold and delivered to it, and after the execution returned unsatisfied, brought suit against a stockholder to enforce the liability alleged to have been incurred by him by reason of the failure of the stock- holders to pay in the amount of the capital stock, the burden of proof is on the plaintiff to establish the defendant's liability for the debts of the company. Sec. X23p. Same— Compulsory reference. — In an action, the object of which is to charge the defendant with liability under this statute, is not of such a nature as to be the subject of a reference against the objections of the defendant.® 1 Richards V. Coe, 19 Abb. (N. Y.) » 31 Hun (N. T.) 132 (1883). N. G. 79 (1887); Richards V. Beach, * Citing Veeder v. Baker, 83 19 Abb. (ISr. Y.) N. C. 84 (1887). N. Y. 156 (1880). 2 3 «■. Y. Sup. 1823 (1888); s. c. ^ 33 Hun (N. Y.) 144 (1885). 18 N. Y. St. Rep. 945. See 19 Abb. « Claflin v. Drake, 38 Hun (N. Y.) (N. Y.) N. C. 79 (1887), note. 144 (1885); citing Camp v. Inger- 300 REMEDIES OF CREDITORS. Sec. 123q. Same — Remedies of creditor. — It seems that a creditor of a corporation seeldng to enforce his right has his option of two remedies ; first, he may bring an action in equity for a general accounting, in which all stockholders and creditors shall be parties ; second, he ijiay proceed at law against any stockholder under the special right to sue con- veyed by the statute, and hold such stockholder liable up to the amount of his stock-subscription. ^ But where a creditor chooses the latter remedy, the stockholder may set up as a defence that he is himself a creditor of such corporation.^ One or more creditors of a corporation may maintain an action in equity, on behalf of themselves and of all other creditors similarly situated who may come in and adopt it against the corporation and its stockholders, who have become personally liable for its debts, or who are owing balances of stock subscriptions, to ascertain the extent of such liabilities and realize the amount thereof, and to restrain the bringing or further prosecution of separate and individual actions at law by creditors against stockholders that the claims of all the creditors to share in the fund realized from stockholders' liabilities may be investigated, established and paid, and thus a multiplicity avoided and willful litigation established.^ The mere fact that some creditors have realized their claims in full, in suits against stockholders, recoverhig the full amount of the claim, does not affect the right to maintain such action, the fund to be reached being what remains unenforced of the stockholders' liabilities.* The courts i'u their endeavor to prevent a multiplicity of suits, have, in some instances, held that the remedy of the soil, 86 N. Y. 43-3; Read v. Lozin, v. Howe, ;17 N. Y. 458; Mathez v. 31 Hun, (N. Y.) 286 (188.S). See Neidig, 72 N. Y. 100 (1S7S) ; Wheeler Hyatt V. Roach, 1 Abb. {N. Y.) N. C. v. Millar, 90 K. Y. 333 (1882). 125 (1876). ' Cochran v. American Opera Co.. 1 Richards v. Kinsley, 12 IT. Y. 20 Abb. (N. Y.) N, C. 114 (1887), St. Rep. 125 (1887) ; s. c. 14 N. Y. See Pfo^il v. Simpson, 74 N. Y. 137 St. Rep. 701. (187S) ; Erie R. Co. v. Ramsey, 45 ' Richards v. Kinsley, 12 K. Y. St. N. Y. 637 (1871). Rep. 125 (1887); s. c. 14 N. Y. St. * Cochran v. American Opera Co., Rep. 701. See Briggs v. Penniman, 20 Abb. {N. Y.) N. C. 114 (1887). 8 Cow. (N. Y.) 387 (1826); Garrison FAILUEE TO FILE ANNUAL EEPOKT. 301 creditor to enforce unpaid subscriptions is. by bill in equity in behalf of himself and others similarly situated, in which the corporation and its stockholders may be brought in as defend- ants, that their Tarious rights, liabilities and equities, may be determined in that action, and this is upon the theory that no one creditor can assume that he alone is entitled to what the stockholder owes, and that it is inequitable to permit him to sue at law to appropriate it exclusively to himself.^ Sec. 123r. Annual report — Failure to file — Incoming directors. — So long as the default lasts, the other essentials existing, there is no distinction between directors in office at the time of default and those subsequently elected ; the incoming director has power at any time to protect himself from liabil- ity by filing a report, and his failure to do so imposes a liability for debts contracted during his term.^ But the trustees are neither parties nor privies to a judg- ment against the company ; and where, in consequence of a failure to make and file an annual report, they have become liable to pay the debts of the company and an action is brought against them to. enforce that liability and collect a debt due from the company, proof of the recovery of such a judgment thereon is neither conclusive nor prima facie evidence of the debt.^ Sec. 123s. Same — Compulsory reference. — A compulsory ref- erence cannot be ordered in an action to which a trustee with a debt of the corporation by reason of omission to file an annual report, although the oiily issue is one as to the indebt- edness of the corporation on a long account.* Sec 134. Dissolution— Liability not Impaired by. — The dissolution, for any cause whatever, of any cor- 1 Richards v. Beach, 12 N. T. St. (1875) ; aff. 2 Hun (N. Y.) 613 ; Buck Kep. 136, 138 (1887); citing Harris v. Barker, 5 N. Y. St. Rep. 826 V. First Parish, 40 Mass. (23 Pick.) (1887). , 112 (1839) ; Ladd v. Cartwright, » Miller v. White, 50 N. T. 137 7 Oreg. 329 (1879) ; Patterson v. (1872) ; Buck v. Barker, 5 N. Y. St. Lynde, 106 U. S. (16 Otto) 519 (1882) ; Rep. 826, 828 (1887). bk. 27 L. ed. 265. * Hyatt v. Eoach, 1 Abb. (N. Y.) 2 Chandler v. Hoag, 63 N. Y. 624 N. C. 125 (1876). 302 DISSOLtTTIOSr OF COEPOKATION BY LEGISLATT7EE. poration created as aforesaid, shall not take away or impair any remedy given against sach corporation, its stockholders or officers, for any liabilities incurred previous to its dissolution.^ Sec. 124a. Dissolution by legislature.— The General Assem- bly by act in 1886, provided for the winding up of corporations which have been annulled and dissolved by legislative enact- ment.^ Sec. 124b. Dissolution of corporations. — A corporation may cease to do business, sell or assign its property for the pay- ment of its debts, and jet not cease to be a corporation in fact.^ And it has frequently been held that a corporation will not be dissolved by the sale of its franchise, or of all of the corporate property and the temporary suspension of its business, so long as it has the legal and moral capacity to increase its subscriptions, call in more capital, and resume its business ; * neither is a corporation dissolved by settlement of its concerns and division of the surplus, nor by cessation of all corporate acts, nor by abuse of its corporate powers, or the doing of acts which constitute a forfeiture of the charter, without a judgment so declaring, rendered by a court of com- 1 L. 1875, c. 611, § 38; 3 N. Y. E. (N. Y.) 645, 652 (1832); Rollins v. S., 8tli ed., 1688. Clay, 33 Me. 132 (1851); Chesapeake 2 L. 1886, c. 310. & O. Canal Co. t. Baltimore & O. 8 Wilde V. .Jenkins, 4 Paige Ch. E. Co., 4 Gill & J. (Md.) 1, 121 (N. Y.) 481 (1834); De Camp v. Al- (1832); Knowltonv. Ackley, 62 Mass. ward, 52 Ind. 473 (1876). (8 Cush.) 95 (1851) ; Boston Glass * Briggs V. Penniman, 8 Cow. Manuf. v. Langdon, 41 Mass. (24 (N. T.) 387 (1826); s. c. 18 Am. Dec. Pick.) 49, .52 (1834); Eussell v. Mc- 456, 459; Brinckerhoff v. Brown, 7 Lellan, 31 Mass. (14 Pick.) 63 (1833); Johns. Ch.(N.Y.) 217 (1823); Dewey Harris v. Mississippi Valley & S. 1. v. St. Albans Trustee, 56 Vt. 476, E. Co., 51 Miss. 603 (1875); Kansas 483 (1884); s. c. 48 Am. Rep. 803, City Hotel v. Sauer, 65 Mo. 288 808. See People v.Twaddell, 18 Hun, (1877); Hohoken Building Assoc. (N. Y.) 427 (1879); Slee v. Bloom, v. Martin, 13 X. J. Eq. (2 Beas.) 427 5 Johns. Ch. (N. Y.) 366, 379 (1821); (1861); Com. v. CuUen, 13 Pa. St. Wilde V. Jenkins, 4 Paige Ch. (N. Y.) 133 (1850) ; Brandon Iron Co. v. 481 (1834) ; Philips v. Wickham, Gleason, 24 Vt. 238 (1852); Morley 1 Paige Ch. (N. Y.). 590 (1829); Nia- v. Thayer, 3 Fed. Eep. 737, ' 74a gara Bank v. Johnson, 8 Wend. (1880). ASSETS ON DISSOLTTTION. 305 petent jurisdiction ; ^ nor by the mere fact of insolvency .^ Where there has been no actual and formal surrender of the franchises of a corporation, and no< judicial declaration of its dissolution, merely suspending active operations, resolving to go into litigation, and depositing money to pay debts, and the like, are not sufficient to operate as a final dissolution of a corporation.^ Upon the dissolution of a corporation its assets become a fund for the payment of its debts, including those to mature as well as accrued indebtedness, and all open and subsisting^ engagements entered into by the corporation ; * this trust fund will include all suras remaining unpaid on shares of stock of the stockholders, as well as all assets divided among the stock- holders, leaving the debts unpaid ; and where the property remaining is insufficient to pay the debts, the stockholders may be held liable for the payment of such debts to the extent to which they have not paid up their shares or have received assets of the corporation.^ 1 Wilde V. Jenkins, 4 Paige Ch. (N. Y.) 481 (1834) ; Morley v. Thayer, 3 Fed. Kep. 737, 748 (1880). See Slee V. Bloom, 5 Johns. Ch. (N. Y.) 366, 379 (1821) ; Niagara Bank v. Johnson, 8 Wend. (N. Y.) 645, 652 (1832); Chesapeake & O. Canal Co. T. Baltimore & O. E. Co., 4 Gill & J. (Md.) 1, 121 (1832); Boston Glass Manuf. V. Langdon, 41 Mass. (24 Pick.) 49, 52 (1834). 2 Kincaid v. Dwinelle, 59 N. Y. 548 (1875) ; Boston Glass Manuf. v. Langdon, 41 Mass. (24 Pick.) 49 (1834) ; Germantown Pass. R. Co. V. Fitler, 60 Pa. St. 124 (1869); s. c. 100 Am. Dec. 546. See National Pahquioque Bank v. Bethel Bank, 36 Conn. 325 (1870); City Ins. Co. V. Commercial Bank, 68 111. 350 (1873); DeCamp v. Alward, 52 Ind. 469 (1876) ; Folger v. Columbian Ins. Co., 99 Mass. 276 (1868); Moseby v. Burrow, 52 Tex. 396 (1880) ; First Nat. Bank of Bethel v. National Pah- quioque Bank, 81 U. S. (14 Wall.) 383 (1871); bk. 20 L. ed. 841. ' See Brinckerhoff v. Brown, 7 Johns. Ch. (N. Y.) 217 (1823); Ord- way V. Baltimore Cent. Nat. Bank, 47 Md. 239 (1877); State v. Bank of Maryland, 6 Gill & J. (Md.) 205 (18-34) ; Boston G. Manuf. Co. v. Lang- don, 41 Mass. (24 Pick.) 49 (1834). * People V. National Trust Co., 82 N. Y. 283 (1880) ; Hightower v. Thornton, 8 Ga. 486 (1850); s. c. 52^ Am. Dec. 412 ; Payne v. Bullard, 23 Miss. 88 (1851); s. c. 55 Am. Dec. 74 ; Ohio Life Ins. & Trust Co. v. Merchants' Ins. & Trust Co., 11 Humph. (Tenn.) 1 (1850); s. c. 5a Am. Dec. 742. 5 Hastings v. Drew, 76 N. Y. 9 (1879); Mann v. Pentz, 3 N. Y. 415, 422 (1850); Graham v. Hoy, 38 N. Y. Super. Ct. (6 J. & S.) 506 (1875); Briggs V. Penniman, 8 Cow. (N. Y.> .387 (1826); s. c. 18 Am. Dec. 454; Bartlett v. Drew, 4 Lans. (N. Y.) 304 CAPITAL STOCK FUND FOE PAYMENT OF DEBTS. Justice Swayne says in the case of Sanger v. Upton,^ that " the capital stock of an incorporated company is a fund set apart for the payment of it^ debts. It is a substitute for the personal liability which subsists in private copartnerships. When debts are incurred, a contract arises with the creditors that it shall not be withdrawn or applied otherwise than upon their demands, until such demands are satisfied. The cred- itors have a lien upon it in equity. If diverted they may follow it as far as it can be traced, and subject it to the pay- ment of their claims, except as against holders who have taken it bona fide for a valuable consideration and without notice. It is publicly pledged to those who deal with the corporation for their security. Unpaid stock is as much a part of this pledge and as much a part of the assets of the com- pany, as the cash which has been paid in upon it. Creditors have the same right to look to it as to anything else, and the same right to insist upon its payment as upon payment of any other debt due to the company. As regards creditors there is no distinction between such a demand and any other asset which may form a part of the property and effects of the corporation." It has been held that upon the dissolution of a joint-stock company it is the duty of the trustees to convert the assets into money to pay the debts and obligations, and distri- bute the remainder among the stockholders. They have no right to exchange the assets or any portion thereof of the 444 (1871); s. c. 60 Barb. (N. Y.) Pat. Brick Co., 13 Wis. 61 (1860); 648; 57 ^T. Y. 587; Hemy v. Vermil- Hatch v. Dana, 101 U. S. (11 Otto.) lion & A. E. Co., 17 Ohio 187 (1848)) 205 (1879); bk. 25 L. ed. 885; Sanger Smith V. Huokabee, 53 Ala. 195 v. Upton, 91 U. S. (1 Otto) 56(1875); {1875); Allen V. Montgomery E. Co., bk. 23 L. ed. 220; Curran v. Arkan- 11 Ala. 437 (1847); DeMonyv. John- sas, 56 U. S. (15 How.) 304 (1853); son, 7 Ala. 51 (1^5) ; Bingham v. bk 14 L. ed. 705 ; Haskins v. Hard- Eushing, 5 Ala. 403 (1843) ; Harmon ing, 2 Dill. C. C. 106 (1873) ; Wood V. Page, 62 Cal. 448 (1882); s. c. 10 v. Dummer, 3 Mas. C. C. 308 (1824); Pac. L. J. 634; Ward v. Griswolds- In re South Mountain C. M. Co., 7 ville Manuf. Co. , 16 Conn. 593 (1844) ; Sawy. C. 0. 30 (1881); 2 Stoiy Eq. Hightower v. Thornton, 8 Ga. 486 Jur., §1252; Thomp. on Liability of (1850); Eoberson v. Conrey, 5 La. Stockholders, § 11. An. 297 (1850); Payne v. BuUard, 23 i 91 U. S. (1 Otto) 56 (1875); bk. Miss. 88 (1851) ; Adler v. Milwaukee 23 L. ed. 220 WHEN DISSOLUTIOK TAKES PLACE. 305 old association for the corporate stock of any corporation without the consent of all the stockholders. And the stock- holder who does not consent to such exchange may recover the value of his stock so wrongfully disposed of.^ Sec. 124c. Same — 'When dissolution takes place. — The disso- lution of a corporation can take place only (1) by act of the legislature, where power is reserved for that purpose, (2) by a surrender of the charter which is accepted by the state ; (3) by the loss of all its members, or of an integral part, so that the concerns of corporate,f unctions cannot be restored ; and (4) the forfeiture of the charter declared by the judgment of a court of competent jurisdiction. ^ It has been said that as a general rule to constitute a dissolution of a corporation by a surren- der of its franchise, or by misuser or nonuser, the surrender must be accepted by the government, or the default must be judicially declared ;3 but in the case of Slee v. ^ Frothingham v. Barney, 6 Hun T.) 239 (1865); Howe v. Deuel, 43 (N. Y.) 366 (1876). 2 Bradt v. Benedict, 17 N. T. 99 (1858); Yemon Society v. Hills. 6 Cow. (N. Y.) 23 (1826) ; s. c. 16 Am. Dec. 429; Barclay v. Talmau, 4 Edw. Ch. (N. Y.) 123 (1842) ; Slee v. Bloom, 5 Johns. Ch. (N. Y.) 367 (1821); Wilde V. Jenkins, 4 Paige Ch. (N. Y.) 481 (1834); Bank of Niagara v. Johnson, 8 Wend. (N. Y.) 645 (1832) ; Penobscot Boom Corp. v. Lamson, 16 Me. 231 (1839) ; s. c. 33 Am. Dec. 660; Chesapeake & O. Canal Co. v. Baltimore & O. K. Co., 4 Gill & J. (Md.) 121 (1832) ; Eevere v. Boston Copper Co., 32 Mass. (15 Pick.) 351 <1834); Eussellv. McLellan, 31 Mass. (14 Pick.) 63 (1833); Peter v. Ken- dal, 6 Bam. & C. 703 (1827); 2 Kent Com. 312. = Denike v. New York & E. L. & C. Co., 80 N. Y. 599 (1880); Buffalo 6 A. E. Co. V. Cary, 26 N. Y. 75 <1862); Belmont v. Erie E. Co., 52 Barb. (N. Y.) 637 (1869); Doyle v. Peerless Petroleum Co., 44 Barb. (N. 20 Barb. (N. Y.) 504(1865); Bangs v. Mcintosh, 23 Barb. (N. Y.)591 (1857); People V. Dean, 6 Cow. (N. Y.) 27 (1826) ; Attomey-GenerE^ v. Utica Ins. Co., 2 Johns. Ch. (N. Y.) 371 (1817) ; Wilde v. Jenkins, 4 Paige Ch. (N. Y.) 481 (1834) ; Verplanck V. Mercantile Ins. Co., 1 Edw. Ch. (N. Y.) 84 (1831); s. c. 2 Paige Ch. (N. Y.)438; Neallv. Hill, 16 Cal. 145 (1860); Baker v. Backus, 32 111. 79 (1863) ; Atchapalaya Bank v. Daw- son, 13 La. 497 (1839) ; Attorney- General V. Tudor Ice Co., 104 Mass. 239 (1870) ; Eussell v. McLellan 31 Mass. (14 Pick.) 63(183.3); Cady v. Centreville Knit Goods Mfg. Co., 48 Mich. 133 (1882) ; Attorney-General v. Bank of Michigan, Harr. Ch. (Mich.) 315 (1843) ; Bayless v. Orne, 1 Freem. Ch. (Miss.) 161 (1841); State v. Mer- chants' Ins. Co., 8 Humph. (Tenn.) 235 (1847) ; Strong v. McCagg, r,r, Wis. 624(1882); Trustees Dartmouth College V. Woodward, 17 U. S. (4 Wheat.) 518, 698 (1819); bk. 4L. ed. 306 DISSOLUTION A MATTER OF LAW. Bloom ^ it was held by the New York court of errors that a manufacturing corporation, organizedunderthe Actof 1811, might be deemed dissolved so as to make the stockholders liable for debts, when it had suffered its property to be sold, and the trustees had actually relinquished their trust and had for more than a year done nothing manifesting an intention of resuming their corporate functions. The court in that case held that under the circumstances the corporation might be deemed to have surrendered its franchise and to be dissolved in fact.^ The dissolution of a corporation is a matter of law arising from the facts.^ Thus the seizure of the franchise of a cor- poration in efPect works its dissolution ;* but the mere non- user or misuser, working a forfeiture of corporate rights, cannot be taken advantage of collaterally.^ At common law the only modes of dissolving corporations was by the death of its members ; by act of the legislature ; by a surrender of the charter accepted by the government, or by forfeiture of the franchises, which could only take effect upon a judgment of a court of competent jurisdiction, in a proceeding on behalf of the government or people.® 629, 674; Terrett v. Taylor, 13 U. S. County Bank, 7 Hun (N. T.) 549 (9 Cr.) 43, 51 (1815); bk. 3 L. ed. (1876). 650, 652; Gaylord y. Ft. Wayne, M. ^ jghn v. Farmers' & Mechanics & C. E. Co.,6Biss. C. C. 286 (1875); Bank, 2 Blackf. (Ind.) 867 (1830); Peter v. Kendal, 6 Bam. & C. 703 s. c. 20 Am. Dec. 119. (1827) ; Attorney-General v. Claren- * State Bank v. State, 1 Blackf. don, 17 Ves. Jr. 491 (1810). (Ind.) 267 (1823); s. c. 12 Am. Dec. 1 19 Johns. (N. T.) 456 (1822) ; s. c. 234. ' 10 Am. Dec. 273. « Trustees of Vernon Soc. v. Hills, 2 See Bradt v. Benedict, 17 N". Y. 6 Cow. (N. T.) 23 (1826); s. c. 16 93, 99 (1858); Penniman v. Briggs, Am. Dec. 429; John v. Farmers c& Hopk. Ch. (N. Y.) 300(1824); s. c. Mechanics' Bank, 2 Blackf. (Ind.> 8 Cow. (N. Y.)3^. See also Denike 367 (183Q); s. o. 20 Am. Dec. 119. V. New York Lime & Cement Co., ^ Barclay v. Talman, 4 Edw. Ch. 80 N. Y. 599 (1880) ; New York (N. Y.) 123 (1842) ; Allen v. New Marbled Iron Works v. Smith, 4 Jersey S. R. Co., 49 How. (N. Y.) Duer (N. Y.) 362 (1855); Allen v. Pr. 17 (1875) ; State v. Real Estate New Jersey S. R. Co., 49 How. (N. Bank, 5 Ark. 595(1844); s. c.41Am. Y.)Pr. 14(1875); Webster v. Turner, Dec. 109; McMahan v. Morrison, 16 12 Hun, (N. Y.) 264 (1877); Lake Ind. 172 (1861); s. c. 79 Am. Dec. Ontario Nat. Bank v. Onondaga 418; PenobsQOt Boom Corporation v. liTABILITY OV STOCKHOLDERS ON DISSOLUTION. 307 Sec. 124d. Same— Interest of stockholder.— Upon the disso- lution of a corporation, the title to the real property held by- such corporation vests in the receiver of the corporation ; and the property, both real and personal of the corporation, must be administered by the receiver for the benefit and interest of the stockholders.^ Sec. 124e. Same— Liability of stockholders.— On the dissolu- tion of a corporation, the persons composing the company afc the time are individually responsible for its debts to the extent of their respective shares ; ^ but where the corporation is dissolved by time, a creditor cannot enforce his debt against the individuals composing the corporation beyond the extent fixed in the resolution passed by the trustees, at which they assented.^ In the case of Savings Association v. O'Brien,* it was held that the Missouri statute ^ providing that " if any company formed under this act dissolve, leaving debts unpaid, suits may be' brought against any person or persons who were stockholders at the time of dissolution, without joining the company in such suit, and if judginent be rendered and execu- tion satisfied, the defendant or defendants may sue all who were stockholders at the time of the dissolution for the recovery of the portion of such debt for which they were liable," creates a personal liability on the part of the stock- holder which may be enforced by a common law action in. other states. Lamson, 16 Me. 224 (1839) ; s. c. 33 Mach. Co., 2 Hun, (ISr. T.) 110 (1874.) Am. Dec. 656; Folger v. Columbian ^ Owen v. Smith, 31 Barb. (N. Y.) Ins. Co., 99 Mass. 267 (1868); s. c. 646 (1860); James v. Woodruff, 10 96 Am. Dec. 747 ; Boston Glass Paige Ch. (N. T.) 541 (1844). See Manuf. Co. v. Langdon, 41 Mass. Morgan Co. v. Thomas, 76 111. 148 (24 Pick.) 49 (1834); 8. c. 35 Am. (1875). Dec. 292; Trustees of Mclntire Poor "Slee v. Bloom, 5 Johns. Ch. (N. School V. Zanesville Canal & M. Co., T.) 366 (1821). Compare, Strong v. 9 Ohio, 203 (1839) ; s. c 34 Am. Dec. Wheaton, 38 Barb. (N". Y.) 619 (1861). 436. See Bradt v. Benedict, 17 N. ' See Slee v. Bloom, 5 Johns. Ch. Y. 99 (1858); Kincaid v. Dwihelle, (N. Y.) .366 (1821); Lowry v. Inman, 37 N. Y. Super. Ct. (5 J. & S.) 326 2 Sween. (N. Y.) 131 (1869). (1874) ; New York Marbled Iron * 5 Ky. & Corp. L. J. 318 (1889). "Works V. Smith, 4 Duer (N. Y.) 362 ^ i Wag. St. Mo., c. 37, art. 1, £ 22. (1855); Cary v. Schoharie Valley SOS CEBDITOES' KEMBDY ON DISSOLUTION. Sec. 124f. Same — Creditor's remedy on dissolution. — In nearly if not quite all of the states, before a creditor is entitled to proceed against a stockholder he must first exhaust his remedy against the company ; * but where all the property of a cor- poration has been sold iu execution under the general Insol- vency Act, and the corpoi-ation has ceased to do business as such, and the trustees or directors have no power to resusci- tate the company, it seems that the corporation may be deemed to be dissolved for the purposes of the remedy of creditors against the stockholders individually ; ^ for where a corpora- tion is dissolved the liability of the stockholders to the cred- itors becomes primary and absolute, and it is not necessary first either to sue the corporation or to aver and prove its insolvency. It has been said that where a creditor sues a single stock- holder, he may maintain an action of debt, but that where he proceeds against two or more, he may maintain a bill in equity.^ Sec. 124g. Same— Effect at common law.— It has been said Marcy v. Clark, 17 Mass. 330 (1821) ; Leland v. Marsh, 16 Mass. 389 (1820). 2 Penniman v. Briggs, Hopk. Ch. (N. Y.) 800 (1824); s. c. 8 Cow. (N. Y.) 387. See State Savings As- sociation V. Kellogg, 52 Mo. 589 (1853); Dewey v. St. Albans Trust Co., 56 Vt. 482 (1884). " Penniman v. Briggs, Hopk. Ch. (N. Y.) 300 (1824); s. c. 8 Cow. (N. Y.) 387; Spenoe v. Shapard, 57 Ala. 599 (1877). See Stover v. Flack, 30 N. Y. 64 (1864) ; Garri- son V. Howe, 17 N. Y. 458 (1858); Diven v. Duncan, 41 Barb. (N. Y.) 520 (1863); Perkins v. Church, 31 Barb. (N. T.) 84 (1859); Slee v. Bloom, 19 Johns. (N. Y.)456 (1822); s. c. 10 Am. Dec. 273; Van Hook v. Whitlock, 3 Paige Ch. (N. Y.) 409 (1832); Bank of Poughkeepsie v. Ibbotson, 24 Wend. (N. Y.) 473 (1840); Simonson v. Spencer, 15 "Wend. (N. Y.) 548 (1836) ; Matthews V. Albert, 24 Md. 527(1866); Bullard V. Bell, 1 Mass. C. C. 243 (1817). 1 Shellington v. Howlaud, 53 N. Y. 374 (1873); aff'g s. c. 67 Barb. (N. Y.) 14; Lindsley v. Simouds, 2 (N. y.) Pr. N. S. 69 (1866); Abb. Lane v. Harris, 16 Ga. 217 (1854); Thornton v. Lane, 11 Ga. 459 (1852); Drinkwater v. Portland Marine K. Co., 18 Me. 35 (1841); Chamherlin V. Huguenot M'f'g Co., 118 Mass. 536 (1875) ; Priest v. Essex Hat Mfg. Co., 115 Mass. 380 (1874) ; Cambridge Water Works v. Somerville Dyeing & B. Co., 86 Mass. (4 Allen) 239 (1862); McClareu v. Franciscus, 43 Mo. 452(1869); Wehrmanv. Reakirt, 1 Cin. Sup. Ct. 230 (1871); New England Commercial Bank v. New- port Steam Factory, 6 E. I. 154 (1859); Blake v. Hinkle, 10 Yerg. (Tenn.) 218 (1836) ; Dauchy v. Brown, 24 Vt. 197 (1852). See Eemington v. Samana Bay Co., 140 Mass. 494 (1886); s. c. 1 New Eng. Eep. 707; Stedman v. Eveleth, 47 Mass. (6 Mete.) 114 (1843); Stone v. Wig- gin, 46 Mass. (5 Mete.) 316 (1842); EFFECT OF DISSOLUTION AT COMMON LAW. 309 that the effect at common law of the dissolution of a corpora- tion was (1) that its lands and tenements reverted to the person by whom they were granted to the corporation ; (2) its goods and chattels vested in the crown ; and (3) the debts due to or from it were extinguished.^ According to the rigid doctrine of the common law on the dissolution of a cor- poration, all debts due to the company were totally extin- guished, in so far, at least, as any right of action thereon was concerned ; ^ hence on dissolution a corporation could neither sue nor be sued at common law,^ and all pending suits by or against such corporation were abated, where the fact of dis- solution was brought seasonably to the notice of the court ; * but such is not the case in this country.* 1 Hightower v. Thornton, 8 G-a. 486 (1850); State Bank v. State, 1 Blackf. (Ind.) 267 (1823); s. c 12 Am. Dec. 234; Port Gibson v. Moore, 21 Miss. (13 Smed. & M.) 157 (1S49); Commercial Bank v. Cham- bers, 16 Miss. (8 Smed. & M.) 9 (1847); Mississippi Bank v. Wrenn, 11 Miss. (3 Smed. & M.) 791 (1844) ; Renick v. West Union Bank, 13 Ohio 298 (1844); Miami Exporting Co. V. Gano, 13 Ohio 269 (1844); White V. Campbell, 5 Humph. (Tenn.) 38 (1844); Colchester v. Sea- ber, 3 Burr. 1866 (1766); Edmunds T. Brown, 1 Lev. 237 (1669) ; Rex V. Pasmore, 3 T. R. 241, 242 (1789); 1 Bl. Com. 484; 2 Kent Com. 307. 2 See People v. O'Brien, 111 N. T. I (1888); s. c. 7 Am. St. Rep. 684, and note 717 ; Corning v. McCul- lough, 1 N. Y. 47 (1847); s. c. 49 Am. Dec. 287 ; Bingham v. Weider- wax, 1 N. Y. 509(1848); Freeland v. McCuUough, 1 Den. (N. Y.) 414 (1845); s. c. 43 Am. Dec. 685; Mor- gan V. New York & A. R. Co., 10 Paige Ch. (N. Y.) 290 (184.3); s. c. 40 Am. Dec. 244; Robison v. Beall, 26 Ga. 33 (1858); Thornton v. Lane, II Ga. 492 (1852); Hightower v. Thornton, 8 Ga. 486 (1850); s. c. 52 Am. Dec. 412 ; State Bank v. State 1 Blackf. (Ind.) 267 (1823); s. c. 12 Am. Dec. 234; Lexington & O. R. Co. V. Bridges, 7 B. Mon. (Ky.) 556 (1847); s. c. 46 Am. Dec. 528 ; Mer- rill V. Suffolk Bank, 31 Me. 57 (1849) ; s. c. 50 Am. Dec. 649; White v. Campbell, 5 Humph. (Tenn.) 38 (1844) ; Colchester v. Seaber, 3 Burr. 1868 arg. (1766); Edmunds v. Brown, 1 Lev. 237 (1669); Knight v. Wells, 1 Lut. 519 (1695); Attorney-General V. Gower, 9 Mod. 226 (1740) ; Rex v. Pasmore, 3 T. R. 199 (1789); Co. Lit. 13b. 102b. ; 4 Bl. Com. 484; i Kent Com. 307; 4 Kyd. Corp. 516; Polle* Arg. Quo Warranto, 112. * Saltmarsh v. Planters' & M. Bank, 14 Ala. 668 (1848): s. c. 17 Ala. 761 (1850); Bank of Louisiana V. Wilson, 19 La. An. 1 (1867). * Paschall v. Whittsitt, 11 Ala. 472 (1847); Farmers' & Mechanics' Bank V. Little, 8 Watts. & S. (Pa.) 207 (1844); First Nat. Bank of Selma v. Colby, 88 U. S. (21 Wall.) 609 (1874); bk. 22 L. ed. 687; Greeley v. Smitli, 3 Story C. C. 657 (1845). Compare, Kansas City Hotel Co. v. Sauer, 65 Mo. 279 (1877) ; Lindell v. Benton, 6 Mo. 361 (1840). 5 See post, § 124i. 310 EFFECT OP DISSOLUTION OS PEOPEKTY AND SUITS. Sec. 12411. Same— Effect on property. -On the dissolution of a legal corporation, its personal and real property becomes assets for the payment of its debts, and distribution among its stockholders ;^ but a lease to a corporation is not terminated by its dissolution, and its covenant to pay rent does not there- upon cease to be obligatory.^ Sec. 124i. Same— Effect on suit pending.— It has been held that in this country an action properly commenced by a cor- poration is not abated by the dissolution of such corporation, but may be continued in its corporate name, without a special application to the court.^ The doctrine of the common law and the one which prevailed in this country for a time, was that on the dissolution of a corporation of pend- ing suits by or against it were abated by the dissolution where that fact was seasonably brought to the attention of the court.* It seems, however, that where a judgment is rendered. for or against a corporation after its dissolution, but without that fact having been regularly brought to the court, the judgment is valid ;^ but where a suit is commenced and judgment obtained against a corporation after its dissolution, the judg- ment is erroneous, and will be reversed on a writ of error on application of a member of the corporation whose property has been levied on under an execution issued on the judg- ment.® There are other cases holding such a judgment not merely erroneous, but absolutely void.'' Sec. 125. Extension of Company's Business— New Cer- 1 state ex rel. Brown v. Bailey, 16 22 L. ed. 687 ; Greeley v. Smith, 3 Ind. 46 (1861); s. c. 79 Am. Dec. Story C. C. 657 (1845). See supra, 405; Lauman v. Lebanon Valley R. § 124f. Co., .SO Pa. St. 42 (1858); s. c. 72 e May v. State Bank, 2 Rob. (Va.) Am. Dec. 685. See ante, § 124a. 56 (1843); s. c. 40 Am. Dec. 726. 2 People V. National Trust Co., 82 » Rankin v. Sherwood, 33 Me. 509 N. Y. 283 (1880). (1831); Merrill v. Suffolk Bank, 31 8 New York Marbled Iron Works Me. 57 (1849). T. Smith, 4 Duer (N. Y.) 362 (1855). ' See Sturges v. Vanderbilt, 73 ♦ See Paschallv. Whittsitt, 11 Ala. N. Y. 384 (1878); McCulloch v. Nor- 472(1847); Farmers' & M. Bank v. wood, 58 N. T. 562 (1874) ; Thornton Little, 8Watts.&S. (Pa.) 207 (1844); v. Marginal Freight Railway, 123 First Nat. Bank of Selma v. Colby, Mass. 32 (1877). 88 U. S. (21 Wall.) 809 (1874); bk. EXTENSION OP BUSINESS — NEW CEETIPICATB. 311 tificate.— The directors of any manufacturing corpo- ration organized under this act, who may desire within one year from the date of the original certifi- cate of such manufacturing corporation to extend the business of such corporation beyond that men- tioned in said original certificate, providing that the proposed extension of said business shall be of the same general character of that stated in, and which might have been properly included in said original certificate, are hereby authorized to make and file an amended certificate of incorporation to conform to this act; and upon the making and filing of such amended certificate, the said corporation shall be deemed and taken to be a manufacturing corporation for all purposes stated in said amended certificate from the time of filing said original certificate.^ » L. 1875, c. 611, § 39, as amended by L. 1888, c. 513. CHAPTER VIII. DISSOLUTION OF CORPORATIONS— VOLUNTARY DISSOLUTION. VOLUNTARY DISSOLUTION — DIVISION OP DIEBCTOES — PETI- TION FOE DISSOLUTION — OEDEE TO SHOW CAUSE — TEMPOE- AEY EECEIVBE — INJUNCTION — SBEVICB OF OEDER — HEAR- ING ON PETITION — ORIGINAL PAPBES — FINAL ORDER TEANSFEE OF PEOPBETY — VOID WHEN. Sec. 126. Voluntary dissolution — When directors may petition for. Sec. 126a. Same — Jurisdiction to dissolve corporation. Sec. 126b. Same — Statutoiy proceeding. Sec. 126c. Same — Application for dissolution. Sec. 128d. Same — Resolution of directors. Sec. 126e. Same — Insolvency of corporation. Sec. 126f. Same — New York doctrine. Sec. 126g. Same — ^Discretion of court. Sec. 126h. Same — Remedy of creditors. Sec. 126i. Same — Who may be trustees — Executora. Sec. I26j. Same — Power of trustees. Sec. 127. Same — Wbere directors are equally divided. Sec. 128. Same — Petition for dissolution — Contents of. Sec. 128a. Same — Requisites of petition for dissolution. Sec. 128b. Same — Presentation of — Statutory provisions — Wbat a com- pliance with. Sec. 128c. Same — Inventory — Omission of items. Sec. 129. Same— Affidavit to be annexed. Sec. 130. Same — Presentation of petition — Order to show cause — Temporary- receiver — Notice of application for — Injunction Sec. 130a. Same — Order to show cause — Form and contents of. Sec. 130b. Same — Notice of order — Hearing. Sec. 130c. Same — Injunction — Vacating order. Sec. 130d. Same — Service of injunction — Mode of. Sec. 130e. Same — Receiver — When appointed. Sec. 131. Same — Order to be published. Sec. 132. Same — Order to be served on creditors and stockholders. Sec. 132a. Same — Service of copies of papers. Sec. 133. Same — Hearing — Appointment of referee VOLUNTARY DISSOLUTIONS OF CORPORATIONS. 31 S Sec. 133a. Same— Failure of referee to report. Sec. 134. Same — Original papers may be used. Sec. 135. Same — Application for final order. Sec. 136. Same— Final order. Sec. 136a. Same— Appointment of receiver — When made. Sec. 1.36b. Same — Sale and distribution of assets. Sec. 136c. Same — Stockholders — Rights of majority. Sec. J37. Same— Certain sales, etc., void. Sec. 1.37a. Same — Transfer of property — Void after petition for dissolu- tion Sec. 137b. Same — judgments obtained by confession— Preferences. Sec. 126. Yoluntary Dissolution — When Directors may Petition for. — If a majority of the directors, trus- tees, or other oflScers, having the management of the concerns of a corporation created by or under the laws of the state, discover that the stock, effects, and other property thereof are not sufl3.cient to pay all just demands, for which it is liable, or to afford a reasonable. security to those who may deal with it ; or if, for any reason, they deem it beneficial to the interests of the stockholders, that the corporation should be dissolved; they may present a petition, to the supreme court or to a superior city court of the city where the principal office of the corporation is located, praying for a final order dissolving the cor- poration, as prescribed in this title.^ Sec. 126a. Same — Jurisdiction to Dissolve Corporation. — A court of equity has not, by virtue of its general or inherent powers, the right to dissolve a corporation ; such right is purely IN. Y. Code Civ. Proc, § 2419. corporation instead of 'the stock- Thls section of the Code of Civil holders' as herein provided." Procedure was amended by laws of This provision of the Code does. 1884, c. 406, by adding the following not apply to incorporated library clause, to wit: "In cases of Corpo- societies, to religious corporations, rations affected by the provisions of or to select schools or academies in- this title and not having stock- corporated by the agents of the uni- holders, it shall be sufficient for the versity, or by the legislature, or to a members of this title to notify, name municipal or other political corpora- and refer to the ' members ' of such tion. N. Y. Code Civ. Proc, § 2431. SI 4 STATUTORY PROCEEDINGS FOR DISSOLUTION. ;statutory.i Where the action is properly instituted the New York superior court has jurisdiction of an action to dissolve a corporation of that state which transacts its business and is served with the summons in the city of New York.^ In this case the court say : " By the passage of the Code of Procedure in the year succeeding the passage of the Judicial Act, the equity jurisdiction which by that act was vested exclusively in the supreme court, was bestowed in part on the superior court, the court of common pleas, and the mayor's and recorder's courts of cities ; and to such extent that each of these courts was given a general equity jurisdiction." ^ Sec. 126b. Same— Statutory Proceeding.— Proceedings for a voluntary dissolution of a corporation are special and statutory in which the court has no power or authority to act, except as such power is conferred by the statute ;* and the courts of general jurisdiction must conform strictly to the statute.* Thus where a receiver was appointed in a proceeding for the voluntary dissolution of a corporation, before the return of the order to show cause, it was held that the appointment was unauthorized, the court having no authority to appoint a receiver, except in conformity with the statute.® And where judgment was entered in an action by a creditor in a case not authorized by law dissolving the corporation and appointing a permanent receiver, and subsequently all the unsecured indebtedness was paid off, the court . held that neither the plaintiff nor any other creditor could retain the unauthorized and really suspend judgment for the benefit of a secured indebtedness, which was neither due when the action was commenced nor mentioned in the complaint, especially when 1 Bliven v. Peru Steel & Iron Co., * In re Boynton Saw and File Co., 9 Abb. (N. Y.) N. C. 205 (1881). 6 N. Y. Civ. Proc. Kep., 342 (1884); 2 Van Pelt v. United States Metal- Chamberlain v. Seamless Paper Ves- lic Spring Co., 1# Abb. (N. Y.) Pr. sel Co., 7 Hun, (N. Y.) 557 (1876). N. S. 325 (1872). 6 Chamberlain v. Seamless Paper 3 See Bennett v. LeRoy, 5 Abb. Vessel Co., 7 Hun, (N. Y.) 557 (X. Y.) Pr. 55 (1857); Bowen v. (1876). Irish Presbyterian Congregation, 6 ^ chamberlain v. Seamless Paper Bosw. (N. Y.) 245 (1860); Forest v. Vessel Co., 7 Hun, (N. Y.) 557 Forest, 6 Duer, (N. Y.) 102 (1856); (1876). .aff'd 25 N. Y. 501. APPLICATION FOR DISSOLUTION. 315 another action has been begun by the holders of such indebt- edness in which their rights could be fully protected.^ Sec. 126c. Same— Application for dissolution.— An applica- tion for the dissolution of a corporation must proceed from the company or its board of directors or trustees.^ A stock- holder is not entitled to a decree winding up the affairs of a corporation and appointing a receiver,^ nor can a portion of the stockholders of a manufacturing corporation surrender the franchises of the corporation and work its dissolution;* and a decree for the dissolution of a corporation in an action by a stockholder or creditor who is also the president, and in a case not authorized by statute, cannot be sustained although the action is assented to by the president and bj- one or more ■of the trustees individually ; because an application for a voluntary dissolution must proceed from the company, or its board of trustees.^ And in a recent case the New York supreme court held that the order of a court of equity dis- solving a corporation and appointing a receiver of its assets, made upon the application of all the stockholders and some of the creditors, will be vacated where some of the require- ments of the statute respecting the voluntary dissolution of corporations have not been complied with ; the corporation being engaged at the time of such order in active business, •witla a large amount of assets, and a full board of directors.® Sec. 126d. Same— Resolution of Directors.— A corporation cannot be dissolved by a resolution of its directors or trustees to wind up its affairs ; such a resolution can have no effect because the corporation can only be dissolved by a judicial sentence or by a surrender of its charter accepted by the 1 Bllven V. Peru Steel & Iron Co., Deuel, 43 Barb. (N. T.) 505 (1865); 9 Abb. (N. T.) N. C. 205 (1881). Galwey v. United States Steam S. 2 Bliven v. Peru Steel & Iron Co., Refining Co., 36 Barb. (N. Y.) 256 S Abb. (N. Y.) N. C. 205 (1881). (1861); Gilmanv. Green Point Sugar 8 Bliven v. Peru Steel & Iron Co., Co., 4 Lans. (N. Y.) 483 (1871). 9 Abb. (N. Y.) N. C. 205 (1881). See * Denike v. New York & E. Lime Denike v. New York R. Lime & Ce- & Cement Co., 80 N. Y. 599 (1880). ment Co., 80 N. Y. 599 (1880); Ram- ^ Bliven v. Peru Steel & Iron Co., sey V. Erie R. Co., 7 Abb. (N. T.) 9 Abb. (N. Y.) N. C. 205 (1881). Pr. N. S. 156, 181 (1869); How v. « In re Mart, 5 N. Y. Sup. 82 (1889). 316 INSOLVENCY OF COEPOEATION. state.^ The dissolution of a corporation extinguishes all its debts, and the power of dissolving itself by its own act would be a dangerous power, and one which cannot be supposed to exist.^ Sec. 126e. Same — Insolvency of CQrporation. — The mere insolvency of a corporation does not work a dissolution of its corporate existence, neither does proceedings in insolvency nor the appointment of a receiver of its corporate property ; * because it is not enough to work a dissolution that causes there- for have actual existence ; their existence must be judicially ascertained and declared and then enforced by judgment of the court, except in those cases where they are within the- power of the legislature.* Thus it has been held that the mere fact that a majority of the property and franchises of a railroad company are held in custody by a court of equity, for the purpose of enforcing satisfaction of specific claims, does not work a dissolution of the corporation ; and that the corporate existence continues ^ New York Marbled Iron Works Bank v. First Nat. Bank of Bethel, v. Smith, 4 Duer (N. Y.) 362 (1855). 36 Conn. 325 (1870) ; aff'd 81 U. S. See Bradt v. Benedict, 17 N. Y. 93 (14 Wall.) 383; bk. 20, L. ed. 840 j (1858) ; Lake Ontario Nat. Bank v. Holland v. Heyman, 60 Ga. 174 Onondaga Co. Bank, 7 Hun, (N. Y.) (1878); City Ins. Co. v. Commercial 549 (1876). Bank, 68 111. 348 (1873); Bmffett v. 2 Boston Glass Manuf. v. Lang- Great Western R. Co., 25 111. 357 don, 41 Mass. (24 Pick.) 49, 53 (1834). (1861); Bell v. Indianapolis, C. & sCoburn v. Papier Mache Manuf. L. R. Co., 53 Ind. 57 (1876); Valley Co., 76 Mass. (10 Gray) 243, 245 Bank v. Ladies Cong. Sewing Soc. (1857). See Kincaid v. Dwinelle, 59 ; 28 Kan.. 423 (1882); Folger v. Col- N. Y. 548 (1875); Lea v. American umbian Ins. Co., 99 Mass. 267, 276 Atl. & Pac. Canal Co., 3 Abb. (N. Y.) (1868) ; Boston Glass Manuf. v. Lang. Pr. N. S. 1 (1867); Howe v. Deuel, don, 41 Mass. (24 Pick.) 49 (1834); 43 Barb. (N. Y.) 504(186.5); Hugile- Moseby v. Burrows, 52 Tex. 396 not Nat. Bank v. Studwell, 6 Daly (1880) ; Central Nat. Bank v. Con- (N. Y.) 13 (1875^; New York Mar- necticut Mut. Life Ins. Co., 104 U. S. bled Iron Works v. Smith, 4 Duer, (14 Otto) 54 (1881); bk. 26 L. ed. 693. (N. Y.) 362 (1855); People v. Erie R. "Sturges v. Vanderbilt, 73 N. Y. Co., 36How. (N. Y.)Pr. 129(1868); 384 (1878); Brooklyn Cent. R. Co. Hollingshead V. Woodward, 35 Hun, v. Brooklyn City R. Co., 32 Barb. - (N. Y.)410 (1885); Green v. Walkill (N. Y.) 3.58 (1860); State v. Noyesj. Nat. Bank, 7 Hun, (N. Y.) 63 (1876) ; 47 Me. 189 (1859) ; Grand Gulf R. & Nimmons v. Tappan, 2 Sween. (N. B. Co. v. State, 18 Miss. (10 Smed. & Y.) 652 (1870) ; National Pahquioque M.) 428 (1848). NEW YORK DOCTKINE — DISCRETION OF COtlKT. 317 notwithstanding the fact that dominion over the road and property has been suspended.^ Sec. 126f. Same— New York Doctrine.— The New York doc- trine is that notwithstanding the fact that the corporation does or suffers to be done, acts which destroy the end and object of its creation and which are equivalent to a surrender of its corporate rights, yet that the mere insolvency, although total, is not suf¢ evidence of such a surrender.^ Sec. 126g. Same— Discretion of Court.— The court is not bound to decree a dissolution of the corporation simply because a majority of the directors and stockholders request it to be ■done. However, it seems that where the owners of a large portion of the stock find it to their interest to withdraw their capital, it will be deemed presumptive evidence that the interest of the stockholders, generally, will be promoted by the dissolution of the corporation.^ It is said in In re Niagara Ins. Co.,* that under an act to provide for the dissolution of incorporated insurance com- panies in the city of New York, passed April 5, 1817, the court of chancery should exercise the same discretionary power in decreeing a dissolution as the legislature in case the latter were applied to by the directors of the company for the repeal of the charter. It is thought that the same is true of other corporations. Sec. 126h. Same— Remedy of Creditors.— Where a proceeding is pending for the dissolution of a corporation, the remedy of any creditor is in that proceeding only, and in a district in ■which the same is pending.^ Sec. 126i. Same — Who may be Trustees — Executors. — One hold- ing corporate stock as executor may become at least a de facto 1 Heath v. Missouri, K. & Tex. R. ' In re Niagara Ins. Co., 1 Paige Co., 83 Mo. 617 (1884). Ch. (N. T.) 258 (1828). 2Bradt v. Benedict, 17 N. T. 93 * 1 Paige Ch. (N. T.) 258 (1828). (1858). See New England Iron Co. * Attorney-General v. North Amer- V. Gilbert Elevated R. Co., 91 N. T. ica Life Ins. Co., 6 Abb. (N. T.) 153, 167 (1883); Bruce v. Piatt, 80 N. C. 293 (1879). N. Y. 379-390 (1880.) 318 DIRECTORS EQUALLY DIVIDED. trustee of the corporation and as such join in a petition for its dissolution.! Sec. 126j. Same— Power of Trustees.— It is said in the case of People V. O'Brien ^ that under the New York Revised Statute which provides that, on the dissolution of any corpo- ration, the directors or managers of such corporation at the tinxe of its dissolution shall be the trustees of the creditors and stockholders with full power to settle and wind up the affairs of the corporation, such directors become vested with title to the corporate property immediately upon dissolution, of the corporation .8 The New York statute, providing that whenever a corpor- ation shall be dissolved by act of the legislature the attorney- general shall bring suit to wind up its affairs, not being expressly retrospective, does not apply to a corporation dis- solved by legislative act seven days before its passage.* Sec. 127. Same— Where Directors are Equally Divided. — If a corporation, created under a general statute of the state for the formation of corporations, has an even number of trustees or directors, who are equally divided, respecting the management of its affairs, and the entire stock of the corporation is, at that time, owned by the trustees, or directors, or is so divided that one-half thereof is owned or controlled by per- sons favoring the course of one -half of the trustees or directors, and one-half by persons favoring the course of the other half of them, the trustees or directors, or one or more of them, may present a petition as prescribed in the last section. But this sectiojj does not apply to a savings bank, a trust company, a safe deposit company, or a 1 In re Santa Eulalia Silver Mining s L. 1886, c. 310; 4 N. Y. R. S., Co., 51 Hun (N. Y.) 640 (1889); 8th ed., p. 2678. S.C.2N. Y. Sup. 221; afC'd 4 X. Y. * People v. O'Brien, 111 N. Y. 1 Sup. 474; 23 N. Y. St. Rep. 1000. (1888); s. c. 18 N. E. Rep. 692; rev. 2 111 N". Y. 1 (1888); s. c. 18 K. 45 Hun, (N. Y.) 519. E. Rep. 692; rev. 4r, Hun (N. Y.) 519. PETITION FOR DISSOLUTION CONTENTS. 319 corporation formed to rent safes in burglar and fire- proof vaults, or for the construction or operation of a railroad, or for aiding in the construction thereof, or for the carrying on the business of banking or insurance, or intended to derive a profit from the loan or use of money .^ Sec. 128. Same— Petition for Dissolution— Contents of. — The petition must show that the case is one of those specified in the last two sections, and must state the reasons which induced the petitioner or petitioners to desire the dissolution of the corpora- tion. A schedule must be annexed to the petition, containing the following matters, as far as the peti- tioner or petitioners know, or have the means of knowing the same: 1. A full and true account of all the creditors of the corporation, and of all unsatisfied engagements, entered into by, and subsisting against, the corpora- tion, 2. A statement of the name and place of residence of each creditor, and of each person with whom such an engagement was made, and to whom it is to be performed, if known ; or, if either is not known, a statement of that fact. 3. A statement of the sum owing to each creditor, or other person specified in the last subdivision, and the nature of each debt, demand, or other engage- ment. 4. A statement of tha true cause and consider- ation of the indebtedness to each creditor. 5. A full, just, and true inventory of all the prop- 1 N. T. Code Civ. Proc, § 242a 320 KBQTJISITES OF PETITION FOK DISSOLUTION. erty of the corporation, and of all the books, vouch- ers, and securities relating thereto. 6. A statement of each incumbrance upon the property of the corporation, by judgment, mortgage, pledge, or otherwise. * 7. A full, just, and true account of the capital stock of the corporation, specifying the name of each stockholder ; his residence, if it is known, or if it is not known, stating the fact; the number of shares belonging to him; the amount paid in upon his shares, and the amount still due thereupon.^ Sec. 128a. Same — Requisites of — Petition for dissolution.— A corporation can only effect a voluntary dissolution by a peti- tion; ^ such petition must fully comply with the statute in all particulars, * and state facts showing that the dissolution of the corporation will be beneficial to the interest of the stock- holders.* It is not enough to allege that the parties differ as to the management of the affairs of the company, and that the petitioners, who own one-half of the shares of the corpo- rate stock, are convinced that if the methods and plans of the other parties in relation to the management of a corpora- tion be carried into effect the result will be the financial ruin of the corporation.^ Averments in the petition or complaint that the debt has been due for a year; that the entire debt is now due; and that payment has been demanded and refused on the ground of lack of assets, are not sufficient, as they show neither insolvency for a year nor neglect of payment for a year, for 1 N. T. Code Civ. Proc, 2421. « Matter of Dubo's, 15 How. 2 In New Toft to the Supreme (N. T.) Pr. 7 (1857); s. c. 6 Abb. Court and proceeding according to (N. Y.) Pr. 386 note. Art. 3, tit. 4, c. 8, pt. 3, of the New * Matter of Pyrolusite Manganese York Revised Statute. See note to Co., 29 Hun., (N. Y.) 429 (1883) People V. Bruff, 9 Abb. (N. T.) s. c. 3 N. Y. Civ. Proc. Rep., 270. N. C. 162, 166 (1880); Lake Ontario « Matter of Pyrolusite Manganese Nat. Bauk v. Onondaga County Co., 29 Hun, (N. Y.) 429 (1883) Bank, 7 Hun, (N. Y.) 549 (1876). s. c. 3 N. Y. Civ. Proc. Rep. 270. PKESBNTATION OF PETITION FOK DISSOLUTION. 321 the reason that it does not appear when the demand was made.^ The petition or complaint should also set out that the stock not stated to be issued to the stockholders named, is still owned by or in the possession of the corporation, or, at least, that it has not been issued. The property ought to be identified in the inventory, and to be so fully described as, if it be lands, by metes and bounds, or by references to convey- ances or otherwise, that the receiver may be enabled to take possession of the property. Such an inventory, and a full statement of the books, vouchers, and securities relating to the property, will be required, in order to put it in the power of the receiver to be certain that he has received all the prop- erty, and to "bring such actions, or take such other steps as may be necessary to pay the liabilities of the company .^ Sec. 128b. Same — Presentation of — Statutory provisions — What a compliance with.— In voluntary proceedings for the dissolu- tion of a corporation, the statutory provision ^ that on presen- tation of the petition the court may make an order requiring all persons interested in the corporation to show cause why it should not be dissolved, is not complied with by an order to show cause " why the prayer of the petition should not be granted," no provision being made for service of a copy of the petition therewith. The order is in the nature of process for bringing persons interested before the court, and, unless its provisions are in strict compliance with the statute it is void.* Sec. 128c. Same— Inventory— Omission of items.— Under the New York Code of Civil Procedure,^ requiring that the petition for dissolution of a corporation must have annexed a full, just, and true inventory of all the property of the corporation, and a statement of all the books, vouchers, and securities relating to its property, the question is not whether there has been a technical and accidental omission in the inventory of some 1 Bliven v. Peru Steel & Iron Co., * People v. Seneca Lake Grape & 9 Abb. (N. T.) N. C. 205 (1881). Wine Co., 52 Hun, (N. T.) 174 (1889) ; » Matter of Dubois, 15 How. (N.Y.) s. c. 5 N. Y. Sup. 136; 23 N. T. Pr. 7 (1857); s. c. 6 Abb. (N. Y.) Pr. St. Rep. 346. 386 note. ^ N. Y. Code Civ. Proc, § 2421; 'N. Y. Code Civ. Proc, § 2423, ante, § 128. post, § 130. 21 322 OEDEE TO SHOW CAUSE — TEMPOEAEY EECEIVBK. item of property, or of some book relating to property, but whether, if any omissions exist, they show lack of good faith on the part of the petitioners, and afford evidence of a fraud- ulent purpose. If they do not, the defect is not jurisdictional and may be cured by evidence at the hparing.^ Sec. 129. Same— AfiBdavit to be Annexed.— An affida- vit made by each of the petitioners to the effect that the matters of fact, stated in the petition and the schedule, are just and true so far as the affiant knows, or has the means of knowing the same, must be annexed to the petition and schedule. ^ Sec. 130. Same— Presentation of petition— Order to show Canse— Temporary Receiver— Notice of Application for— Injunction. — "Where the petition is addressed to the supreme court the papers must be presented at a term of that court, held within the judicial district embracing the county wherein the principal office of the corporation is located. In a case specified in section 2420 of this act, the court may, in its discre- tion, entertain or dismiss the application. Where it entertains the application, or where the case is one of those specified in section 2419 of this act, the court must make an order requiring all persons in- terested in the corporation to show cause before it, or before a referee designated in the order, at a time and place therein specified, not less than three months after the granting of the order, why the cor- poration should not be dissolved. The order must be entered, ^nd the papers must be filed, within ten days after the order is made, with the clerk of the court, or, in the supreme court, with the clerk of 1 In re Santa Eulalia Silver Mining T. Sup. 174; 23 N. T. St. Kep. Co., 51 Hun, 640 (1889); s. c. 4N. 1000; aff'g 2 N. T. Sup. 221. 2 N. Y. Code Civ. Proc, § 2422. NOTICE OF APPLICATION — ^INJUNCTION. 323'" the county where the principal office of the corpo- ration is located. If it shall be made to appear to the satisfaction of the court that the corporation is insolvent, the court may at any stage of the proceed- ing before final order, on motion of the petitioners on notice to the attorney-general, or on motion of the attorney -general on notice to the corporation, appoint a temporary receiver of the property of the corporation, which receiver shall have all the powers and be subject to all the duties that are defined as belonging to temporary receivers appointed in an action, in section one thousand seven hundred and eighty-eight of this act. The court may also in its discretion, at any stage in the proceeding after such appointment upon like motion and notice confer upon such temporary receiver the powers and authority, and subject him to the duties and liabil- ities of a permanent receiver, or as much thereof as it thinks proper, except that he shall not make any final distribution among the creditors and stock- holders, before final order in the proceedings, unless he is specially directed so to do by the court. If such receiver be appointed, the court may in its dis- cretion, on like motion and notice, with or without security, at any stage of the proceeding before final order, grant an injunction, restraining the creditors of the corporation from bringing any action against the said corporation for the recovery of a sum of money, or from taking any further proceedings in such an action theretofore commenced. Such injunc- tion shall have the same effect and be subject to the same provisions of law as if each creditor upon whom, it be served was named therein. 1 N. T. Code Civ. Proc, § 2423, as amended by L. 1889, c. 314. 324 OKDER TO SHOW CAUSE — POKM AND CONTENTS. Sec. 130a. Same — Order to show cause — Form and contents of. — An order to show cause why a corporation should not be dissolved, is in the nature of the process for bringing in the persons interested not contesting and resisting the applica- tion before the court, and the requirements of the statute as to its form and contents must be strictly complied with ; and if they fail to do this then the court does not acquire jurisdic- tion over the proceedings, and it will have no authority to make any adjudication affecting the rights of the parties designed to be controlled by it.^ Thus an order requiring all persons interested to show cause " why the prayer of petitioners should not be granted," does not comply with the requirements of the statute, and proceedings founded thereon are void for lack of jurisdiction ; and objection may be taken by any of the parties to the pro- ceeding at any stage thereof.^ The statute does not give the court control over the cor- porate property until the decision is made upon the return of the order to show cause. If such consent had been given there would doubtless be, as an incident of such control, au- thority to restrain creditors from suing the company and to prevent any interference by creditors with the corporate assets ; ^ but where the creditors of a corporation do not appear, or in any way waive their rights to be served with precisely such an order as the Code of Civil Procedure pre- scribes, no jurisdiction is acquired over them, and a charge of this omission can be made at any time by either party, even though the objection is not taken on their motion to vacate the order in their answer.* 1 Matter of Pyrolusite Manganese Month. L. Bui. 57 (1881). See Co., 29 Hun (N.»Y.) 429, 431 (1883); Phoenix Foundry Co. v. North River s. c. 3 N. T. Civ. Proc. Rep. 270. Construction Co., 33 Hun (N. Y.) See Matter of Valentine, 72 N. Y. 156 (1884) ; s. c. 6 N. Y. Civ. Proc. 184 (1878) ; Sharp v. Speir, 4 Hill Rep. 106; 19 N. Y. Week. Dig. 439. § 66. Pr. 165.(1849). 3 Whittlesey v. Frantz, 74 N. Y. 456 (1878). JUKISDICTION TO APPOINT. SS& opportunity to be heard.^ The statute, however, does not require any service or notice on the corporation; but the court would not act discreetly were it to proceed upon the application without such notice.^ Sec. 138b. Same — Jurisdiction to appoint. — The cou-rt, but not a judge, may appoint a receiver.' The supreme court has jurisdiction to appoint a receiver in an action brought by a stockholder to restrain corporate actions ; and the receiver thus appointed becomes vested with the property and effects of the insolvent corporation, but it is questionable whether the court in such an action has power to dissolve the corporation.* The power of the court to appoint a receiver of a corporation after the return of an instituted execution though conferred by statute is deemed to be within the general jurisdiction of the court ; and facts to establish it need not be proved.* It is said in Phoenix F. & M. Co. v. North River Const. Co.,^ that in an action by a stockholder of a foreign corpora- tion, which is insolvent, by which a receiver has been appointed in the state under whose laws the corporation was organized, for the appointment of a receiver of its property, and in this state the supreme court has power to appoint a receiver. A receiver may be appointed in an action brought in the second judicial district by a stockholder residing there, or a corporation having its office and place of business in the first judicial district, and this is so notwithstanding the provision of rule eighty-one of the general rules of practice that "such appointment must be made in the judicial district in which the principal place of business of such corporation is situated." ^ 1 See Devoe v. Ithica & O. E. Co., * Osgood v. Maguire, 61 N. T. 524 5 Paige Ch. (N. T.) 521 (1835). (1875). 2 Bangs V. Mcintosh, 23 Barb. * Palmer v.- Clark, 4 Abb. (N. Y.) (N. Y.) 600 (1857) ; Devoe v. Ithica N. C. 25 (1877). See Bangs v. Duck- 6 O. K. Co., 5 Paige Ch. (N. T.) 521 infield, 18 N. Y. 592 (1859). (1835). ■> 6 N. Y. Civ. Proc. Rep. 106 » K. Y. Code Civ. Proc, §§ 1788, (1884). 1810. ' Smith v. Danzig, 64 How. {N. Y.> Pr. 320 (1883). 336 WHEN RECEIVER WILL BE APPOINTED. Sec. 138o. Same— "When appointed.— A receiver will be appointed : 1. Where there are no persons to take charge of the effects of the company and preserve them for the benefit of the cred- itors and stockholders generally ; ^ 2. Where fraud is shown in the defendant, and the fund is in danger of being wasted or misapplied ; * 3. Where necessary to prevent the removal of the property beyond the jurisdiction of the court ; ^ and 4. Where the directors of a corporation do any act which works a forfeiture of the charter of the company, because it is such a violation of the law incorporating the com- pany as to authorize a creditor or a stockholder of the cor- poration to institute proceedings against it, for the purpose of having a receiver appointed to close up the concerns of the company, under the provisions of the statute relative to proceedings against corporations in equity.* Thus it was held in the case of Keokuk N. L. Pac. Co. v. Davidson,^ that where the president of a packet company having failed to make a contract for his company with the government for carrying the mails, and subsequently succeed- ing in making such a contract in his own behalf, employing the boats of his company to the extent of its capacity so long as the said company operated boats on that route, but employing other boats when necessary, will be required to use all the facilities afforded by the company, and to account to the company for all money received for the service per- formed by it, but not for that received for services rendered by the other boats. The court say that the directors and officers of a corporation occupy positions of trust, and must act in the utmost good faith ; that they will not be allowed 1 Conro V. Giiy, 4 How. (n! T.) 3 Johns. Ch. (N. T.) 48(1817); Pod- Pr. 16-5 (1849); Lawrence v. Green- more v. Gunning, 5 Sim. 485 (1832). wich Ins. Co., 1 Paige Ch. (N. T.) ' Conro v. Gray, 4 How. (N. T.) 587(1829). Pr. 16.5 (1849). ^ Burch V. Newberry, 1 Barb. (N. * Ward v. Sea Ins. Co., 7 Paige T.) 648, 664 (1847); Orphan Asylum Ch. (N. T.) 294 (1838). V. McCartee, Hopk. Ch. (N. T.) 429 ^ 95 mq. 467 (1888); s. c. 8 S. W. (182.5); Conro V. Gray, 4 How. (N. Kep. 545. T.) Pr. 165 (1849); Boyd v. Murray, UNLAWFUL USE OF PROPERTY BY OFFICERS. 337 to deal with corporate funds and property for their private gain ; that they have no right to deal with themselves and for the corporation at the same time, and that they must account for the profits made by the use of the company's assets, and for moneys made by a breach of trust.^ The mere insolvency of a corporation is not sufficient ground for the appointment of a receiver, at the instance of a stockholder, in the absence of an express statute.^ Where a corporation is not made a party its property cannot be taken from it and put into the hands of a receiver;^ nor can a receiver be appointed before the return of the order to show cause.* Sec. 138d. Same — Corporation ceased to act — ^Use of Property by officers. — Where a corporation ceases to act and the president and principal stockholders assume to use the property as their own, the only remedy for the creditors of the corpora- tion is to file a complaint and ask for a receiver. ^ And where an officer of a corporation has assigned the property of the corporation to pay his individual debts, it is no answer to the appointment of a receiver in such case that the assignees by accepting the assignment become parties to the breach of trust and that they are solvent and responsible.^ In a suit by certain minority stockholders, where it is shown that the majority, who have neglected and refuse to pay for their stock in full, have possession and control of the affairs of the corporation, as directors and officers, and are managing the business in fraud of the rights of the minority, and so as to " freeze out " the minority, and where the directors are securing to themselves an inequitable and un- lawful advantage and profit for their control of the concern, 1 See Ward v. Davidson, 89 Mo. * Chamberlain v. Rochester Seam- 445, 458 (1886); s. c. 1 S. W. Rep. less Paper Vessel Co, 7 Hun (IST. Y.) 846; Warden V. Union Pac. R. Co., 557 (1876.) 10.3 U. S. (13 Otto) 651 (1880); bk. = Conro v. Gray, 4 How. (N. T.) 26 L. ed. 509. Pr. 165 (1849). 2 Merryman v. Carroll Brick Co., * Conro v. Gray, 4 How. (N. Y.) (Md.) 4 Ry. & Corp. L. J. 12 (1888). Pr. 165 (1849). ' Groesbeeck v. Dunscomb, 41 How. (N. Y.) Pr. 302 (1871). 22 338 EFFECT OP APPOINTMENT OF EECEIVEK. a court of equity, especially where the corporation is prac- tically civiliter mortuus and insolvent, will appoint a receiver of its property.^ Sec. 138e. Same— "Who may have appointed.— A stockholder cannot have a receiver appointed,^ and a mere creditor of a corporation cannot have a receiver appointed until he has a judgment and an execution returned unsatisfied.* In Loder v. New York U. & O. R. Co.,* the plaintiff, a judgment creditor, applied for the appointment of a receiver of the defendant, a corporation, which as a defence to the motion alleged that the judgment was obtained by collusion and fraud of the president of the corporation. Upon the hear- ing time was given to defendant to make a motion to open the judgment on that ground, of which privilege the defend- ant did not avail itself ; and the court held that they were authorized to infer from its failure to attempt to open a judg- ment that the defense was without merit. . Sec. 138f. Same — "Who may be appointed receiver — OfBcers and stockholders. — Upon a voluntary dissolution of a corpor- ation any of its officers or stockholders may be appointed receiver, if not otherwise disqualified. ^ Sec. 138g, Same — Effect of appointment — Dissolution of cor- poration. — It has been said that a corporation is not dissolved merely by the appointment of a receiver and a sequestration of its property ; ^ also that a corporation which has been enjoined from the exercise of its corporate franchise and de- prived of its property, and thus, for all practical purposes,, has ceased ta exist, is not thereby actually dissolved ; because a corporation cannot be dissolved save by the judgment of a court of competent jurisdiction. Until such judgment is rendered creditors may proceed by suit against it, unless 1 Hall V. Astoria Veneer Mills & " People v. Brie R. Co., 36 How. Lumber Co. (Ky.) 5 Ky. & Corp. L. (N. T.) Pr. 129 (1868). J. 412 (1889). * 4 Hun, (N. T.) 22 (1875). 2 See Merryman v. Carroll Brick * Matter of Eagle Iron Works, 8 Co., (Md.) 4 Ky. & Corp. L. J. 12 Paige Ch. (N. T.) 385 (1840). 8 Huguenot Nat. Bank v. Stud- well, 6 Daly (N. Y.) 13 (1875). CHARACTEK AND DUTY OF KECEIVEE. 339 Testrained by injunction, and its stockholders do not cease to be such.^ There are cases, however, holding that a final order or decree for the appointment of a receiver of an insolvent cor- poration, is a virtual dissolution of such corporation.^ Sec. 138h. Same— Character of receiver.— A receiver appointed Tinder the statute is a mere common law receiver to protect the fund during the action, and he has no powers except sueh as are conferred by the order appointing him.* Where a re- ceiver of the property and effects of the corporation is appointed and qualified, he becomes, by the express terms of the stat- ute, a trustee not only for the creditor upon whose applica- cation he is appointed, but for all the creditors of the corporation.* Sec. 1381. Same — Duty of receiver — Claims upon funds. — The receiver of an insolvent corporation owes a like duty to all claims upon the funds ; and it is his duty, as far as possible, to see that each creditor has an equal opportunity to enforce his claims.^ Sec. 138j. Same — -Resistance of appointment — Grounds of. — A stockholder cannot resist the appointment of a receiver on the ground that he became such by an illegal contract, or that he was induced to become siich by fraud of the directors.^ Sec. 138k. Same— Title to property.— The receiver of an in- solvent corporation, unless restricted in his power by the order for his appointment, is absolutely vested with the cor- porate property and effects from the time of his filing the 1 Kincaid v. Dwinelle, 59 N. T. ' Libby v. Eosenkrans, 55 Barb^ 548 (1875); a. c. 37 N. Y. Super. Ct. , (N. T.) 202 (1869). (5 J. & S.) 326. ° People v. Security Life Ins. & 2 Bank Commissioners v. Bank Annuity Co., 78 N. Y. 114(1879); of Buffalo, 6 Paige Ch. (N. Y.) 497, 8. c. 34 Am. Rep. 522. 503(1837). See Kincaid V. Dwinelle, « Matter of Dubois, 15 How. (N. 59 N. Y. 548 (1875); s. c. .37 N. Y. Y.) Pr. 7 (1857); 8. c 6 Abb. (N. Y.} Super. Ct. (5 J. & S.) 326. Pr. 386 note. ' Verplanckv. Mercantile Ins. Co., 2 Paige Ch. (N. Y.) 438 (1831). 340 WHAT PBOPEETy PASSES. security required by statute,^ and is authorized to distribute the surplus among the stockholders for the payment of the debts of the company.^ But the receiver of a corporation in proceedings for voluntary dissolution takes its assets subject to the lien of an attachment or of a^ execution which was issued against the corporation between the time of his appoint- ment and the filing of his bond.^ Sec. 1381. Same— What property passes.— Where a receiver is appointed merely of the property, moneys, choses in action, and effects of a defendant corporation only such property and effects will pass as the defendant had some beneficial interest in at the time of the commencement of the action. If an assignment has already been executed to a receiver appointed in a prior suit, the second receiver will have a right to claim from the first only such proceeds as may not be needed to satisfy the claims of the plaintiffs in such suit ; * because upon such appointment the rights and property of the corpo- ration pass to the receiver in precisely the same shape and condition, and subject to the same equities, under which they were held by the corporation.^ Sec. 138m. Same — When property passes. — The title to prop- erty does not pass to a receiver, and he is not entitled to the possession thereof, until after he has given the requisite bond or security fixed by the order of the court making the appoint- ment ; 8 and a failure to give such bond will be ground for non-suit in an action brought by such receiver in his official 1 In re Berry, 26 Barb. (N. Y.) 55, affirmed without opinion, 73 N. T. 59 (1857); Banis; Commissioners v. 599. Banl£ of Buffalo, 6 Paige Ch. (N'. T.) * Cagger v. Howard, 1 Barb. Ch. 497, 503 (1837). (N. Y.) 368 (1846). 2 Bank Commissioners v. Bank of » Receivers v. Paterson Gas Light Buffalo, 6 Paige Ch. (N. Y.) 497, 503 Co., 23 N. J. L. (3 Zab.) 283 (1852). (1837). 6 Johnson v. Martin, 1 T. & C. ' Chamberlain v. Rochester Seam- (N. Y.) 504 (1873); Defries v. Creed less Paper Vessel Co., 7Hun(N. Y.) 34 L. J. Ch. N. S. 607 (1865); Ed- 557 (1876). See Kincaid v. Dwinelle, wards v. Edwards, L. R. 2 Ch. Div. 59N.Y. 548(1875); Hooleyv.Gieve, 291 (1876), reversing s. c. L R i 7 Abb. (N. Y.) N. C. 271 (1877); Ch. Div. 454. See Ex parte Evans, L. E. 13 Ch. Div. 252 (1879). FILING BOND NUNC PRO TUNC. 341 capacity,^ as well as for reversing the decree of his appoint- ment.^ A mere informality in the bond, however, cannot be taken advantage of in an action brought by a receiver against third parties.^ The obligation of a receiver to give adequate security for the faithful performance of his duties as such is regarded in New York as being founded upon the general practice of courts of equity, and it has been held to be within the power of the court to dispense with security in those cases where it is plainly unnecessary. Thus, where in proceedings by judgment creditors against their debtor, the same person is appointed in different actions, because security given in the first is ample for the protection of all interests.* Sec. 138n. Same — Piling bond nunc pro tunc. — The court may direct that the bond of a receiver be tiled nunc pro tunc, so as to complete the receiver's appointment and render his title to the property good and make him liable to account as an officer of the court for the property which comes to his hands subsequently to the time when the bond should have been filed, in those cases where it has been properly executed with sufficient sureties and approved by the parties, but, through inadvertence, was not filed with the court. And such filing may be ordered notwithstanding the fact that the matter in dispute has been submitted to referees for settlement, and the parties have consented to a decree, because such submission does not in any way alter or affect the liability of the receiver to account to the court for property entrusted to him.^ And where a receiver has executed and filed the necessary bond and it has been approved by the court if one of the sureties of such bond afterward secures a discharge therefrom and the receiver enters into a new obligation before the time for 1 Johnson v. Martin, 1 T. & C. * Banks v. Potter, 21 How. (N. T.> (N. T.) 504 (1873). ' Pr. 469 (1861). 2 Toralinson v. Ward, 2 Conn. 396 ' Whiteside v. Prendergast, 2 Barb. (1818). Ch. (N. T.) 471 (1847). 8 Morgan v. Potter, 17 Hun (N. T.) 403 (1879). 342 INTERESTS AND KIGHTS OF RECEIVERS. enrolling the bond has lapsed, the court may order that it be entered nunc pro tunc.^ Sec. 138o. Same— Torts and crimes.— A corporation in the hands of a receiver cannot be prosecuted for crimes and mis- demeanors committed by the agent§ or servants of the receiver who has full possession of its property and is in charge of its affairs.^ Sec. 139. Same.— Interests and rights of .—Such re- ceivers shall be vested with all the estate, real and personal, of such corporation, from the time of their having filed the security hereinbefore required, and shall be trustees of such estate for the benefit of the creditors of such corporation and of its stockholders.^ Sec. 139a. Same — Appointment of Receiver — Jurisdiction to appoint. — The supreme court has jurisdiction to appoint a receiver in an action brought by a stockholder to restrain cor- porate actions ; and a receiver thus appointed becomes vested with the property and effects of the insolvent corporation, but it is doubtful whether the court in such an action has juris- diction to dissolve the corporation.* Sec. 139b. Same— Vesting title.— A decree appointing a re- ceiver upon application for the dissolution of a corporation, vests in the latter all the property of the corporation,^ and the receiver of an insolvent corporation, unless restricted in his powers by the order of his appointment, is absolutely vested with all the corporate property and effects, subject to the order without any assignment,* and is authorized to dis- tribute the surplus thereof among the stockholders for the payment of the debts of the company.^ 1 Vaughan v. Vaughan, Dick, Ch. * Osgood v. Maguire, 61 N. Y. 524 90 (1743). • (1875). 2 State V. Wabash R. Co., 115 Ind. ' Attorney-General v. Guardian 466(1888); s. c. 1 L. R. A. 179. See Mut. Life Ins. Co., 77 N. Y. 272 Bell V. Indianapolis C. & L. R. Co., (1879). 53 Ind. 57 (1876) ; Ohio & M. R. Co. « Mann v. Pentz, 2 Sandf. Ch. V. Davis, 23 Ind. 553 (1864). (X. Y.) 257 (1845). 8 4 N. Y. R. S., 8th ed., p. 2681, ' Bank Commissioners v. Bank of § 67. Buffalo, 6 Paige Ch. (N. Y.) 497, 503 (1837). "WHEN APPOINTMEKT TAKES EFFECT. 343 The statute above set out^ does not profess to pass on the title which creditors may acquire against the company, but is intended to prescribe the period at which the estate of the company shall be vested in the receiver, so that thereafter the debtors of the company may be bound to settle with him alone, and so that, after that time, also, he shall be enabled to take the possession.^ Sec. 139c. Same — When appointment takes effect. — The ap- pointment of a receiver of an insolvent corporation takes effect from the time of granting an order for a reference to ;appoint a receiver ; and from that moment no act can be done -affecting the property of the corporation by either the corpora- tion or its creditors,^ for although the receiver cannot take j)OSsession of the property of the corporation or be deemed vested with the estate before he is appointed, yet when his appointment is completed the estate vested in him relates back to the time of granting the order for a reference to appoint a receiver.* Sec. 139d. Same — Statutory Provisions — Compliance 'with necessary. — The provisions of the statute requiring the appoint- ment of a receiver of an insolvent corporation upon the peti- tion of a judgment creditor after execution returned unsatis- fied, must be strictly pursued ;^ whether an omission of service ■of an order to show cause why the receiver should not be- appointed by the corporation in proceedings of the attorney, general to dissolve, made by the attorneys of the corporation ^ives the court jurisdiction to make an order appointing a receiver is an unsettled question.® Sec. 139e. Same— Filing bond.— The title of the receiver ^appointed in voluntary dissolution proceedings of the corpora- tion, does not vest until the filing of his bond, and a creditor of a corporation may obtain a lien by judgment or attachment 1 4 N. T. R. S., 8th ed., p. 2681, » Matter of Berry, 26 Barb. (N. Y.) §67; SMpra, §139. 55(1857). 2 Matter ofBerry, 26 Barb. (N.Y.) ^ Clinch v. South Side R. Co., 1 55 (1857). Hun IN. Y.) 636 (1874). " Matter of Berry, 26 Barb. (N. Y.) ' See Bedell v. North America Life .55 (1857). Ins. Co.. 7 Daly (N. Y.) 273 (1877). 344 TITLE TO GOODS — INSTRUCTIONS TO EECBIVEE. on the assets of the corporation between the appointment and the filing of the bond, of the receiver.^ Sec. 139f. Same— Title to goods ordered and paid for.— Where a corporation, before going into jihe hands of a receiver, accepted an order, accompanied with the money, for certain goods which were manufactured and capable of identification from a list which it delivered to the purchaser, it was held that there was a completed sale, and that the receiver should deliver the goods.^ Sec. 139g. Same — Instructions to receiver — Application to- court for.— The receiver of an insolvent corporation may at any time apply to the court for instructions in regard to any matter touching the fund placed in his custody ; and specially is this so where the fund, through his error, is in danger of being unfairly distributed.* Sec. 139h. Same— In cases of insolvency.— Under the New York Revised Statutes* an insolvent corporation is vested with all the estate, real and personal, of such corporation from the time of their having filed the security therein required, and have all the power and authority conferred upon trustees to whom the assignment of an insolvent debtor may be made under the statute.^ Such a receiver is a trustee for the benefit of the creditors of the corporation and its stockholders.* It is thought that by this statute whenever a receiver of aninsolvent corporation " shall show by his own oath, or other competent proof," that any person is indebted to the corpora- tion, or has property of the corporation in his custody or possession, the officer to whom the application is made shall 1 Chamberlain v. Seamless Paper ° Matter of Berry, 26 Barb. (N. Y.) Vessel Co., 7 Hun (N. T.) 557 (1876). 55, 59 (1857). See Kincaid v. Dwinelle, 59 N. T. ^ jones v. Robinson, 26 Barb. 548(1875). • (N. T.) 311 (1857). See United 2 Bates V. Elmer Glass Manfg. States Trust Co. v. New York W. S. Co., (N. J. Eq.) 15 Atl. Rep. 246 & B. R. Co., 101 N. Y. 478, 484 (1888); s. c. 4Ry. (feCorp. L. J. 129. (1886); Libby v. Rosenkrans, 55- 3 People T. Security L. Ins. & Barb. (N. Y.) 202 (1869); Haxtun v. Ann. Co., 79 N. Y. 267 (1879.) Bishop, 3 Wend. (N. Y.) 13 (1829). » 4 N. Y. R. S., 8th ed., p. 2681, §67. POWEE AND ATTTHORITY OP RECEIVER. 345 issue a warrant to bring such person before him for examina- tion ; and that under this statute it is sufficient for the receiver who applies for a warrant to swear to the facts on information and belief.^ Sec. 140. Same— Power and Authority of.— Such re- ceivers shall have all the power and authority, con- ferred by law upon trustees to whom an assignment of the estate of insolvent debtors maybe made, pur- suant to the provisions of the fifth chapter of the Second Part of the Revised Statutes . Sec. 140a. Same — Duties and po'wers of receivers. — The re- ceivers of insolvent corporations are charged with the like duties and clothed with the same powers as are given tO' trustees and assignees of absent, absconding or insolvent debtors.^ They are authorized to retain out of the assets suf- ficient to cancel and discharge all liabilities upon subsisting engagements.* Sec. I40b. Same— Authority to sue.— The receiver represents both the corporation and creditors and stockholders and in his character as trustee for the latter he may disaffirm and maintain an action as receiver to set aside illegal or fraudulent transfers of the property of the corporation made by its officers or agents, or to recover its funds or securities invested or misapplied.^ To prove the authority of a receiver of a corporation to sue it is sufficient to produce the petition, the order appointing^ him receiver, and his official bond.® 1 Noble V. Halliday, 1 N. V. 330 5 Eobt. (K. T.) 348, 362 (1868); Hack (1848). ley v. Draper, 4 T. & C. (N. T.) 622. 24 N. Y. R. S., 8th ed., p. 2681, (18 ). § 68. See post, § 145 et seq. * People v. National Trust Co., 82 •Osgood V. DeGroot, 36 N. Y. .348, N. Y. 283 (1880). 350 (1867) ; Noble v. Halliday, 1 N. Y. ^ Attorney-General v. Guardian 332 (1848); In the Matter of Van Mut. Life Ins. Co., 77 N. Y. 272 Allen, 37 Barb. (N. Y.) 225, 228 (1879). (1861); Berry V. Brett, 6Bosw. (N.Y.) «Palmer v. Clark, 4 Abb. (N. Y.) 627, 628 (1860); Attorney-General v. N. 0.25 (1877). See Potter v. Mer- Life & Fire Ins. Co., 4 Paige Ch. chant's Bk., 28 N. Y. 641 (1864). (N. Y.) 224 (1833); Pardo v. Osgood, •346 SUIT TO SET ASIDE JUDGMENT BY COLLUSION. Sec. 140c. Same — Suit by receiver to set aside judgment by -collusion— Complaint— Service.— The receiver of a corporation may bring an action to set aside the judgment obtained by the defendant, where it appears that the summons and complaint ill defendant's action were served upon an officer of the com- pany who brought it to the notice of *the Board of Trustees and with the assent of the Board they were delivered to the attorney who brought the action to protect the interest of the corporation, and judgment was taken by default ; the evidence justifies a finding that the judgment was without considera- tion, and was suffered to be entered by fraud and collusion between defendant and the officers and trustees of the corpora- tion.i In a complaint in such an action it was not expressly averred that the judgment was fraudulent in fact, or that officers of the corporation colluded with the plaintiff therein ; but facts were averred which, if proved, authorized the inference that the judgment was without consideration and fraudulently and coUusively obtained. The court held the complaint sufficient after judgment ; that if the complaint was technically defective the objection should have been taken by demurrer or otherwise before issue on the facts ; also, that it was not necessary to employ the term " fraud " or " fraudulent " to -characterize the transaction.^ In an action by a receiver of a corporation to set aside a judgment obtained by defendant for the balance of the pur- chase-price, where it appeared that the summons and complaint in defendant's action were served upon the officer of the com- pany who brought it to the notice of the board of trustees, and with the assent of the board they delivered to the attorney who brought the action to protect the interest of the corpora- tion, no action is interposed and the judgment was by default. The court held that the evidence justified a finding that the judgment was without consideration, and was .suffered to be entered by fraud and collusion between de- fendant and officers and trustees of the corporation, also 1 Whittlesey v. Delaney, 73 N. T. ^ Whittlesey v. Delaney, 73 N. Y. S71 (1878). 571 (1878). SUIT UPON CANCELLED NOTE. 347 that the court having jurisdiction of the cause of action and the parties, had authority not only to vacate the judgment but also to pass upon the merits but to definitely dispose of defendant's claim.^ Sec. 140d. Same— Suit upon cancelled note.— The receiver of an insolvent corporation has the right to maintain an action to compel the payment of a note which the company held for the capital stock, and which the shareholder had pro- cured to be cancelled without payment, by an arrangement effected by him by means of his being a director of the company ; ^ because a receiver so appointed may not only treat as void all acts done in fraud of creditors, but he may sue for all sums due to the insolvent corporation, and for all its property improperly disposed of in violation of the rights of other creditors or stockholders, for the purpose of paying the debts and dividing the surplus among the stockholders.^ It is well settled that, without the aid of any statutory pro- vision, the unpaid subscriptions to the capital stock of a corporation constitute a fund available to creditors who are unable to make their demands from the corporate debtor, and equity will lend its aid to a receiver duly appointed to enforce the payment of such subscriptions for the benefit of the creditors.* Sec. 140e. Same — Suit upon notes — Foreign attachment of debt. — Where the receiver of a domestic corporation sued upon promissory notes which were part of the assets of the corporation that came into his hands as such receiver, which 1 Whittlesey v. Delaney, 73 N. T. 2 Dill. C. C. 107 (1873). See Briggs 571 (1878). V. Penniman, 8 Cow. (N. Y.) 387 2 See Nathan v. Whitlock, 9 Paieg (1826); s. c. 18 Am. Dec. 454; Spear Oh. (N. T.) 152 (1841); Mann v. v. Crawford, 14 Wend. (N. T.) 20 Pentz, 2 Sandf. (N. T.) Ch. 257, 267 (1835); s. c. 28 Am. Dec. 513; Ward (1845). V. Griswoldville Manuf. Co., 16 3 Pratt T. Eaton, 18 Hun (N. Y.) Conn. 59M (1844); Pettibone v. Mc- 296 (1879); Nathan v. Whitlock, 9 Graw, 6 Mich. 441 (1859); Henry v. Paige Ch. (N. Y.) 152 (1841). SeeOs- Vermillion & A. K. Co., 17 Ohio, good V. Laytin,48 Barb. (N. Y.) 463 187 (1848); Adler v. Milwaukee P. (1867); aff'g3Keyes, (N. Y.) 521. B. Manuf. Co., 13 Wis. 57 (1860); *Mann v. Pentz, 2 Sandf. (N. Y.) Wood v. Dummer, 3 Mason C. C. Ch. 257 (1845); Haskins v. Harding, 308 (1824). 348 EXAMINATION OP DEBTOR — WAREANT FOR. notes were made by the resident of another state, and payable at the domicil of the corporation, the defendant, pleaded in bar that after the appointment of the plaintiff as receiver the debt due upon the notes was attached in an action brought in the state where the debtor resided, by a creditor of the corporation, and the court held that the notes were property, the situs of which was in this state, and passed to the receiver for the benefit of all the creditors, and that the proceeding in Massachusetts did not affect his title or right to recover. The court say that a subsequent attach- ment b}^ a creditor in this state would not have affected plaintiffs rights, and the rule of international comity does not give foreign creditors a better position in this respect than domestic.^ Sec. 140f. Same — Examination of debtor — VTarrant of — Petition for.— Where an application is made to an officer by a receiver of an insolvent corporation for a warrant to bring a debtor before such officer for examination pursuant to the statute^ the petition for that purpose should state the facts upon which the application is founded positively and not in the alternative.^ If the petition states that the person so pro- ceeded against has in his possession either individually or as administrator, etc., some property belonging to the petitioner ; that such person for the estate of his intestate is indebted to the petitioner, and that he individually or as such adminis- trator has in his hand a large amount of money belonging to the petitioner, that he has not accounted for or delivered over to him ; such petition will be defective, and will not authorize the issuing of a warrant.^ 1 Osgood V. Maguire, 61 N. Y. 521 v. Atwood, 4 Bosw. (N. T.) 459 (1875). See Matter of Accounting of (1859); Barclay v. Quicksilver Min- Waite, 99 N. Y. 43| 448 (1885); Wil- ing Co., 6 Lans. (X. Y.) 25 (1872) ; liams V. Ingersoll,"9 N. Y. 508, 525 Hooper v. Tuckerman, .3 Sandf. (1882); Hibernia Bank v. Lacombe, (N. Y.) 311 (1849); Hunt v. Jack- 84 N. Y. 367 (1881) ; Kelly v. Crapo, son, 5 Blatchf. C. C. .349 (1866). 45 N. Y. 86 (1S71); Petersen v. = Halliday v. Noble, 1 Barb. (N. Y.) Chemical Bank, 32 N. Y. 21 (1865); 137 (1847). Matter of Bristol, 16 Abb. (N. Y. ) Pr. = Halliday v. Noble, 1 Barb. (N. T.) 184 (1863); Kunk v. St. John, 29 137(1847). Barb. (N. Y.) 585 (1859); Olyphant COMPROMISE OF DISPUTED CLAIMS — SALE OF PEOPERTY. 349 If the person against whom an application of this nature is made is indebted only as administrator, he is not a person liable to be proceeded against under the statute.^ Sec. 140g. Same — Compromise of disputed claims. — ^The re- ceiver of an insolvent corporation may, upon application to the court, be authorized to compromise disputed and doubtful claims against the company by the allowance of so much of such claims as may be deemed just and equitable ; and he may also be authorized in any case where he may deem it expedient and for the interest of the creditors of the stock- holders of the company to do so, to compromise with debtors of the corporation who are unable to pay in full, upon the receipt of such part of the debts due from them as he may •deem reasonable and for the best interest of the creditors and stockholders of the company .^ But it is said that where controverted rights, or doubtful acts, are to be determined, notice should always be given to the parties interested.* Such notice simply gives evidence of the care and good faith of the receiver in doing what may be deemed best in the execution of the trust.^ Sec. 140h. Same— Sale of property by.— The primary object of a sale of the property of a corporation by a receiver being to satisfy judgments and claims against it, the judgment creditors are at liberty to bid upon and buy it. This may be done by all together or by one for the benefit of all and the fact that prior to the sale certain creditors enter into some arrangement by which they were to jointly participate in the property by which one of them would buy at sale, does not vitiate the sale or support the charge of fraud in the procure- ment of the order of sale, and the receiver's report of the «ame, nor will the charge of fraud be supported by an alle- -gation in the complaint that the defendants combine together 1 Halliday v. Noble, 1 Barb. (N. Y.) Anon v. Gelpcke, 5 Hun, (N. Y.) 137 (1847). 245, 251 (1875). ^ See post, § 144. * In re Croton Ins. Co., 3 Barb. 5 In re Croton Ins. Co., 3 Barb. Ch. (N. Y.) 642 (1847) ; Anon. v. Ch. (N. Y.) 642 (1847). See Coyne Gelpcke, 5 Hun, (N. Y.) 251 (1875). V. Weaver, 84 N. Y. 386, 392 (1881); ^ In re Croton Ins. Co., 8 Barb. Ch. (N. Y.) 642 (1847). 350 DIRECTIONS AS TO SALE— SETTING SALE ASIDE. for the purpose of securing to themselves the property of the^ corporation by virtue of their judgments, induced the receiver to apply to the court by petition for instructions as to the sale of such property ; that the receiver was acting in their interest, and was under their control an,d discretion, and that the petition and the order made upon it were prepared by one of the defendants, where there is no averment that they in- duced the receiver to apply for such directions, or that he did so apply in order to carry such conspiracy into effect or that the application or order had anything to do with tlie execu- tion for such purpose.^ Sec. 140i. Same— Directions as to sale.— An order giving^ directions to the receiver of a corporation as to the mode of conducting a sale of the corporate property, is not objectionable because it allows the sale to be made upon fourteen days notice posted in two public places and published two weeks in a newspaper printed in the city of New York.^ If the order directing the receiver as to the manner in which he should proceed in giving notice of and making the sale are irregular or improvident the correction should be sought by a motion before the court which made the order ; an inde- pendent action cannot be maintained for that purpose even though the plaintiff was not a party to the proceeding in which the order was made.^ Sec. I40j. Same— Setting aside sale. — Where a receiver of a corporation fails in his duty in respect to a sale ordered, or lends himself to the creditors to the unnecessary prejudice of the stockholders, the court before which the proceedings are taken upon that being established would intervene on his 1 As to necessary allegation in a ' Libby v. Rosekrans, 55 Barb, complaint setting*up fraud in the (N. Y.) 202, 219, 220 (1869). See procurement of an order for the sale McCotter v. Jay, 30 N. Y. 80 (1864) ; of corporate property and of the con- Gould v. Mortimer, 26 How. (N. Y.) firmation of the report of such sale Pr. 167 (186.3); Brown v. Frost, 10 made by the receiver; See Libby V Paige Ch. (N. Y.) 24.3 (184S); Amer- Rosekrans, 55Barb(N. Y.)202(69)-18 ican Ins. Co. v. Oakley. 9 Paigfr '■i Libby v. Rosekrans, 55 Barb. Ch. (N. Y.) 496 (1842) ; s. c. 38 Am. (N. Y.) 202 (1869). Dec. 561. COLLECTION OF UNPAID SUBSCRIPTION. 351 application and set them aside.^ A stockholder may apply- to the court before which proceedings for sale of the corpo- rate property by a receiver are pending to set aside such proceeding where they are irregular.^ Sec, 14:1. Same— Collection of Unpaid Subscription. — If there shall be any sum remaining due upon any share of stock subscribed in such corporation, the receivers shall immediately proceed and recover the same, unless the person so indebted shall be wholly insolvent ; and for that purpose may file their bill in the court of chancery, or may commence and prosecute an action at law, for the recovery of such sum, without the consent of any creditors of such corporation.* Sec. 141a. Same — Action to recover subscription — Ten per centum. — On an action brought by the receiver of an insolvent limited corporation to recover the ten per cent, cash payment required to be made by subscribers to the stock of the cor- poration at the time of their subscribing therefor, it is only necessary for the plaintiff to show that money belonging to the company had passed into the possession of the defendants for its benefit, and any payment of such money to or under its authority must be alleged and proved by the defendants.^ Sec. 141b. Same. — Unpaid subscription — Action to enforce pay- ment. — Under the section of the Revised Statutes above given,* it is the duty of the receiver to collect from the stockholders 1 Libby v. Rosekrans, 55 Barb. ley, cited in Van Buren v. Che- (N. T.) 202 (1869). nango Mut. Ins. Co., 12 Barb. (N. 2 Libby v. Rosekrans, 55 Barb. T.) 671 (1852). (N. Y.) 202 (1869). . ^ Andrews v. Moller, 37 Hun, (N. sSeeanie, §51j eiseg. T.) 480 (1885); citing Tugman v. ♦4N. T. R. S., 8th ed., p. 2681, National Steamship Co., 76 N. T. §69. This section only -applies to 207, 210, 211 (1879); Segelken v. stock corporations, and not to mutual Meyer, 94 N. T. 473, 484 (1884); insurance companies where there are Everett v. Lockwood, 8 Hun, (N. T.) no stockholders, strictly speaking. 356 (1876). Williams v. Lakey, 15 How. (N. ' Supra, § 141. T.) Pr. 206 (1857); Hyde v. Beards- 352 POEFEITUKE OF STOCK. the sums remaining due upon their several shares of stock ; and after paying the debts of the corporation and expenses of executing the trust to distribute the residue of the fund among the stockholders who may be entitled to the same.^ And he may sue the subscribers for their unpaid subscriptions and the whole of stock not fully paid on their misleading promise to pay such subscriptions.^ The action to enforce payment of stock subscribed which still remains undue is merely a cumulative remedy ; ^ and in such a suit it is no answer that there are other stockholders who are more delinquent than the defendant.* It seems that an order of the supreme court directing an assessment upon stockholders establishes conclusively, until modified on motion or appeal, that the debts, to the payment of which the assessments are to be applied, are debts for which the stockholders are liable. When at the dissolution and the appointment of a receiver, a part of the debts are not due, it is not essential to the validity of an assessment, directed by the court, that judgment should first have been recovered thereon against the company. ^ A receiver of a corporation organized under the general manufacturing act is not vested with the right of action given by that act to creditors of the corporation against the stockholders thereof. The liability of the stockholder does not exist in favor of the corporation itself, or for the benefit of all its creditors, but only in favor of such creditors as are within the prescribed conditions, and is to be enforced by them in their own right and for their own especial benefit.^ Sec. 141c. Same.— Forfeiture. — The right of an incorporated company to enforce a forfeiture of stock, and all previous payments upon the failure of the stockholder to meet the calls of the company, will not prevent such company or the iPentz V. Hawley, 1 Barb. Ch. ^Maun v. Pentz, 2 Sandf. (N. T ) (N. T.) 122, 124 (1845). Ch. 257 (1845). 2 Dayton v. Borst, 31 N. T. 435 ^ Cuykendall v. Douglas, 19 Hun, (1865), aff'd 7 Bosw. (N. Y.) 115. (N. T.) 577 (1880). 8 Mann V. Currie, 2 Barb. (N. T.) i^ Farnsworth v. Wood, 91 N. Y. 294 (1848). 308 (1883). PAYMENT IN FULL. 353 receiver thereof from coUectimg the balance due upon any share of its stock.^ Sec. 141d. Same.— Payment in full.— It seems that it is not necessary, where all the stockholders have paid equallj"- upon their stock, and the funds of the corporation in the receiver's hands are sufficient to pay all debts and expenses, to compel the stockholders to pay up in full. But it is unquestionably the duty of the receiver to call upon the stockholders to pay up in full, when he has reason to believe the whole amount ■due from those who are able to pay will be wanted for the payment of the creditors, and the expenses of executing the trust. 2 Sec. 141e. Same— Restriction.— A receiver prosecuting a shareholder for the unpaid balance of his stock is not re- stricted in recovery to the amount due the creditor of the corporation, who procured his appointment ; he is the officer of the court acting for all the creditors and stockholders.* Sec. 141f. Same.— "Who to be proceeded against.— The person to be proceeded against for the balance due on the stock is the person in whose name the stock stands on the books of the corporation as absolute owner, though he has, in fact, transferred it. He cannot set up that he holds it as trustee for one to whom he has assigned it.* It is said in McDonald v. Ross-Lewin,^ that the receiver of a company organized under the New York statute of 1875^ appointed in an action brought by the people to procure the dissolution of the corporation may assess the members for insisted losses and bring separate actions against each member to recover the assessment so made against him. Sec. 141g. Same. — Oppressive action — Favoritism. — it the re- ceiver acts oppressively in enforcing the payment due upon 1 Mann v. Currie, 2 Barb. (N. Y.) * Mann v. Currie, 2 Barb. (N. T.) 294 (1848). 249 (1848). 2 Pentz T. Hawley, 1 Barb. Ch. ^ 29 Hun, (N. T.) 87 (1883). 122, 124 (1845). « L. 1875, c. 267. » Mann v. Pentz, 2 Sandf. Ch. ' (N. T.) 257 (1845). ^3 354 NOTICE OF APPOINTMENT — ACCOUNTING. stock the court will interfere, either on a cross-complaint bringing in the favored parties, or on a summary application.* Sec. 142. Same— Notice of Appointment— Contents of —Publication of Notice.— The receivers, immediately on their appointment, shall give notice thereof, which shall contain the same matters required by law in notices of trustees of insolvent debtors ; and in addition thereto shall require all persons holding any open or subsisting contract of such corporation, to present the same in writing and in detail to such receivers, at the time and place in such notice spe- cified ; which shall be published for three weeks in the state paper and in a newspaper printed in the county where the principal place of conducting the business of such corporation shall have been situated.2 Sec. 143. Same— Accounting to Receivers for Prop- erty, etc, — After the first publication of the notice of the appointment of receivers, every person having possession of any property belonging to such cor- poration, and every person indebted to such cor- poration, shall account and answer for the amount of such debt and for the value of such property to the said receivers ; and all the provisions of law, in respect to trustees of insolvent debtors, the col- lection and preservation of the property of such debtors, the concealment and discovery thereof, and the means of enforcing such discovery, shall be applicable to the receivers so appointed, and to the property of such corporation.^ 1 Mann v. Pentz, 2 Sandf. Ch. ' 4 N. T. R. S., 8th ed., p. 2682, (N. T.) 257 (1845). § 72. M N. Y. B. S., 8th ed., p. 2682, §70. TOWERS, DUTIES AND OBLIGATIONS OF KECEIVEES. 355 Sec. 1 44. Same— Power to Settle Controversy— Appoint- ment of Referee. — Such receivers shall have the same power to settle any controversy that shall arise between them and any debtors and creditors of such corporation, by a reference, as is given by law to trustees of insolvent debtors ; and the same pro- ceedings for that purpose shall be had, and with the' like effect ; and application for the appointment of referees may be made to any oflScer authorized to appoint such referees on the application of trustees of insolvent debtors, who shall proceed therein in the same manner ; and the referees shall proceed in like manner, and file their report with the like effect in all respects.^ Sec. 144a. Same — Compulsory reference. — The COUrt has power to order a compulsory reference of any controversy between the receiver of an insolvent corporation and a debtor in respect to the debt in favor of or against an insolvent cor- poration ; the jurisdiction of the court to make the order does not depend upon the nature of the offence.* Where a receiver has commenced an action at law to recover a debt, this does not conclude him from applying for a reference.^ Upon filing a report of referees appointed under this sec- tion, to settle controversies between the receiver of a corpo- ration and the debtors or creditors of such corporation, formal entry of judgment is authorized and proper.* Sec. 145. Same— Duties and Obligations— Meeting of Creditors— Adjustment of Accounts.— The receivers shall be subject to all the duties and obligations by law imposed on trustees of insolvent debtors, so far as they may be applicable, except where other pro- 1 4 N. T. R. S., 8th ed., p. 2682, ' Id. § 73. See ante, §§ 140f, 140h. * Ausuin v. Rawdon, 42 N. Y. 155 2 Matter of Crosby v. Day, 81 N. (1870). y. 242 (1880). 556 DUTY OF KECEIVBB — ALLOWING CLAIMS. visions shall be herein made. They shall call a general meeting of the creditors of such corporation, "within four months from the time of their appoint- ment, when all accounts and demands for and against stlch corporation, and all its open and subsisting contracts shall be ascertained and adjusted as far as may be, and the amount of moneys in the hands of the receivers declared.^ Beo. 145a. Same — Duty as to aUowance of claims. — It is said in Attorney-General v. Life & Fire Ins. Co.,^ that it is the duty of receivers of corporations appointed under the statute to allow all claims against the corporation which they may be satisfied are legal and just. But no claim should be allowed by them which could not have been recovered against the corporation either in law or in equity. If the receivers disallow a claim, and referees are appointed in the manner prescribed by the statute, to determine the validity of such claim, the receivers may permit those for whose benefit the defence agaiust the claim is made to manage the defence, or it may be made under the direction of the receiver. Sec. 145b. Same — Duty to make final report.— It is said in Attrill V. Rockaway Beach Imp. Co.,^ that chapter 537 of the Laws of 1880* providing means for compelling receivers of insolvent corporations to make and file reports, applies only to such receivers as are appointed to institute proceedings under title 4, chapter 8, part 3 of the Revised Statutes, who are by chapter 348 of the Laws of 1858 ^ required to make and file quarterly reports of their proceedings. It has no application to receivers of insolvent corporations appointed in one of the additional cases defined and declared in chapter 151, Laws of 1870. • Sec. 146. Same— Open and Subsisting Contracts— Can- cellation and Discharge.— If there be any open and 1 4 N. Y. R. S., 8th ed., § 74. See « 4 N. T. Rev. St., 8th ed., p. 2674 ante, § 140 et seq. § 3, as amended by L. 1882, c. 331, § 1 ^ 4 Paige Ch. (N. T.) 224 (1833). ' See 4 N. T. R. S., 8th ed., p * 25 Hun, (N. T.) 376 (1881). 2672, § 42. SUBSISTING CONTRACTS. 357 subsisting engagements or contracts of such corpo- ration, which are in the nature of insurances or contingent engagements of any kind, the receivers may, with the consent of the party holding such engagement, cancel and discharge the same, by re- funding to such party the premium or consideration paid thereon by such corporation, or so much thereof as shall be in the same proportion to the time which shall remain of any risk assumed by such engage- ment, as the whole premium bore to the whole term of such risk ; and upon such amount being paid by such receivers to the person holding or being the legal owner of such engagement, it shall be deemed cancelled and discharged as against such receivers.* Sec. 146a. Same — Subsisting contracts — Retaining assets to meet.— A receiver of a dissolved corporation is authorized to retain out of the assets of the company sufficient funds to cancel and discharge all liabilities upon subsisting engage- ments;^ but the receiver should not, in case of insurance companies, be authorized to reissue, paying out of the assets of the company the premium therefor.^ Sec. 147. Same— Commissions and Disbursements. — Such receiver shall, in addition to their actual dis- bursements, be entitled to such commissions as the court shall allow, not exceeding the sum allowed by law to executors or administrators.* Sec. 147a. Same — Commission — Allowance by court. — If the 1 4 K. T. E. S., 8th ed., p. 2682, » Matter of Groton Ins. Co., 3 § 75. This section does not apply to Barb. Ch. (N. Y.) 642 (1847). life insurance; it applies only to * 4 K. T. R. S., 8th ed., p. 2683, Fire, Marine, or other insurance § 76. It is said that this section, so having a definite term to run. Peo- far as relates to receivers of corpo- ple V. Security Life Ins.& Annuity rations, seems to have been repealed Co., 78 N. Y. 114 (1879); s. c. 34 by operation of I,aws of 1867, c. 281, Am. Rep. 522. § 8. See People v. Mutual Ben. 2 People V. Nat. Trust Co., 82 N. Assoc, .39 Hun, (M. Y.) 49, 51 (1886). Y. 283 (1880). See^jos*, § 148. 358 KETAINLNG MONEi'. receiver renders annual accounts in couformity with the pro- visions of the rule of court of chancery, he may charge his commissions on the receipts and disbursements of the pro- visions of the previous year, exclusive of such sums as have been received for principal and reinvested. But if he neglects to render his account annually upon the making up of his accounts afterwards he can only charge his commissions upon the gross amount of the receipts and disbursements for the whole period since the rendering of the account.^ Receivers are entitled to receive in addition to their actual disbursements such commissions as the court shall allow not exceeding the sum allowed by law to executors or adminis- trators.^ Sec. 147b. Same — Acting as attorney — Compensation. — The commission allowed by law by an insolvent corporation are intended to be a full compensation for his personal services in the execution of his trust ; consequently he is not author- ized to act himself as counsel in the business of his trust, so as to entitle himself to extra counsel fees for personal services beyond the allowance provided in the fee-bill to attorneys, solicitors and the like.* Sec. 148. Same— Eetaining Money in Hands for Certain Purposes.— The receivers shall retain out of the moneys in their hands, a sufScient amount to pay the sums, which they are hereinbefore authorized to pay, for the purpose of cancelling and discharging an open or subsisting engagement.* Sec. 149. Same— Suits Pending— Retaining Amount Involved.— If any suit be pending against the corpo- ration or against the receivers, for any demand, the receivers m8.y retain the proportion which would ' In Matter of Bank of Niagara, 6 Niagara, 6 Paige Ch. (N. T.) 213, Paige Ch. (N. Y.) 213 (1836). 217 (1836). ^ Van Buren v. Chenango County * In Matter of Bank of Niagara, Mut. Ins. Co., 12 Barb. (N. Y.) 671 6 Paige Ch. (N. Y.) 213 (1836). (1852). See also Matter of Bank of < 4 N. Y. R. S., 8th ed., p. 2683, § 77. See ante, § 146a. DISTRIBUTION OP ASSETS. 359 belong to such demand if established, and the neces- sary costs and proceedings, in their hands, to be applied according to the event of such suit, or to be distributed in a second or other dividend.^ Sec. 150. Same.— Distribution of Assets.— The receiv- ers shall distribute the residue of the moneys in their hands, among all those who shall have exhib- ited their claims as creditors, and whose debts shall have been ascertained, as follows : 1. All debts entitled to a preference under the laws of the United States. 2. Judgments actually obtained against such cor- poration, to the extent of the value of the real estate on which they shall respectively be liens. 3. All other creditors of such corporation, in proportion to their respective demands, without giving any preference to debts due on specialties.^ Sec. 150a. Same — Right to share in — How determined. — ^Where proceedings have been instituted for the dissolution of an insolvent corporation, and the distribution of its assets among its creditors, and a receiver has been appointed therein, the right of any person claiming to be a creditor of the corpo- ration to share in the distribution of its effects in the hands of a receiver, is to be determined upon application to the court in such action or proceedings and in the district in which the receiver was appointed.^ Sec. 150b. Same —Distribution — How made. — The Statute provides that the assets of insolvent corporations shall be distributed in the following order : 1 4 N. Y. K. S., 8th ed., p. 2683, Berry v. Brett, 6 Bosw. (N. T.) f 78. 627 (I860) Holbrook v. Receiver, 6 2 4 N. Y. R. S., 8th ed., p. 2683, Paige Ch. (S. Y.) 220 (1836) ; Pardo § 79. As a set-off in cases of receiv- v. Osgood, 5 Robt. (N. Y.) 348 era, see Matter of Van Allen, 37 (1868). Barb. (N. Y.) 225 (1861). Also Os- ' Judson v. Rossie Galena Co., 9 Soodv.DeGroot,36N. Y.348(1867); Paige Ch. (N. Y.) 598 (1842). 360 DISTRIBUTION — PARTICIPATION IN. 1. All debts entitled to a preference under the laws of the United States. 2. All judgments obtained against such corporation to the extent of the value of the real estate on which they shall respectively be liened.^ 3. All other demands without preference.^ But it is not necessary that the receiver should before making his report distribute all the moneys in his hands among the creditors.* Under this statute it has been held that a judgment rendered after the appointment of a receiver, who received no real estate belonging to the corporation, belongs in the third, and not in the second, class.* The court has power, upon the application of the receiver,, to determine the class to which a claim properly belongs, and to enter an order accordingly.^ One who is employed to assist the general manager of a. corporation in keeping its books, and to clean the office and ship goods, is within Laws N. Y. 1885, c. 376, providing that the receiver of a corporation created under the laws of this state shall prefer and pay from the moneys which shall first come into his hands the wages of employes, operatives, and laborers thereof.® Sec. 150c. Same— Right to participate. — When barred. — Where at the time of the appointment of a receiver for an insolvent corporation a suit is pending against it the plaintiff therein may, at any time before the finding of the final decree exclud- 1 This subdivision of this section Columbian Ins. Co. , 3 Abb. App. directing the payment of judgment Dec. (N. T.) 239 (1866); also Shield to the extent of the value of the real v. Sullivan, 3 Dem. (N. T.) 296, 299 estate of the corporation under which (1885). they are liened does not apply to such * Attorney-General v. Guardian judgment by confession. In Matter Mut. Life Ins. Co., 5 N. Y. Supp. 84 of "Waterbury, 8 Pafge Ch. (N. T.) (1888). 380, 382 (1840). ^ Attorney-General v. Guardian 2 Matter of Berry, 26 Barb. (N. T.) Mut. Life Ins. Co., 5 N. T. Supp. 84 55,59(1857). (1888). ' Case of Empire City Bank, 6 Abb. " Brown v. A. B. C. Fence Co., (N. T.) Pr. 385 (1857). As to the 5N. T. Supp. 95. (1889); 52 Hun rule of distribution of assets of an (N. T.) 151. insolvent corporation, see Matter of SECOND AKD FINAL DIVIDEND. 361 ing all creditors who have not presented their claims, be permitted to come in and prove his claim and participate equally in the distribution of the funds still in the hands of the receiver.^ But it seems that where the receiver has no actual notice of the petitioner's claim before making a second dividend, and has reserved no fund applicable, specifically, to the payment thereof, it is error to require him to pay to the petitioner his portion of such dividend.^ Sec. ISOd. Same— Priority— Tax claims.— The clai«n of the State for taxes is prior to that of the creditors, and is to be paid in full.^ The assets consist practically only of the residue remaining after the discharge of all antecedent claims entitled to priority of payment under the settled rules of general law.* Sec. 150e. Same — Judgment by confession. — It is thought' that the statute ^ does not apply to judgments by confession, which judgments are void both as to the receivers and the creditors, and therefore cannot be valid liens upon the real estate, as to either. The meaning and intent of that provision relative to the payment of judgments, in the distribution of the assets of the corporation, is, that where there are judg- ments, which as against the receiver and the creditors, are valid liens upon real estate the judgment creditors to the extent of those liens shall have a preference. In other words, that the receiver may sell the real estate and pay the judg- ments, which are liens thereupon, out of the proceeds of such sale, or so much of the judgments as the proceeds of such real estate will pay.® Sec. 151. Same— Second and Final Dividend— Notice of.— If the whole of the estate of such corporation be 1 Smith V. Manhattan Ins. Co., 4 3 Ahh. App. Dec. (N. Y.)239 (1866). Hun (N Y.) 127 (1875). See Matter * Matter of Columhiau Ins. Co., of nkrmony Ins. Co., 9 Abb. (N. Y.) 3 Abb. App. Dec. (N. Y.) 239 (1866) Pr. N. S. 347 (1870). 6 4 N. Y. K. S., 8th ed., p. 2183, 2 As to participation in second § 79; ante, § 150. and subsequent dividends, see post, « Matter of Waterbury, 8 Paige § 152a. Ch. (N. Y.) 380, 382, 383 (1840). > Matter of Columbian Ins. Co., 362 MANNER OP MAKING DIVIDENDS. not distributed on the first dividend, the receiver shall, within one year thereafter, and within sixteen months after their appointment, make a second dividend of all the moneys in their hands, among the creditors entitled thereto ; of which, and that the same will be a final dividend, three weeks' notice shall be inserted, once in each week, in the state paper, gnd in a newspaper printed in the county where the principal place of business of such cor- poration is situated.^ Sec. 151a. Same— Final report. — It is not necessary that the jeceiver should before making his report distribute all the money in his hands among the creditors.^ Sec, 152. Same— Manner of making.— Such second dividend shall be made in all respects in the same manner a& herein prescribed in relation to the first dividend, and no other shall be made thereafter among the creditors of such corporation, except to the creditors having suits against it, or against the receivers, pending at the time of such second div- idend, and except of the moneys which may be retained to pay such creditors, as herein provided; but every creditor who shall have neglected to exhibit his demand before the first dividend, and who shall deliver his account to the receivers befoi*e such second dividend, shall receive -the sum he would have been entitled to on the first, dividend, before any distribution be made to the other creditors.^ Sec. lS2a. ^ame — Participattng in second dividends. — It has been said that the true meaning of the latter clause of the foregoing section is that all creditors neglecting to present 1 4 N. Y. E. S., 8th ed., p. 2683, ' 4 N. Y. E. S., 8th ed., p. 2683, § 80. § 81. See Harmony Fire & Marine 2 See Case of Empire City Bank, Ins. Co., 45 N. Y. 310, 315 (1871). 6 Abb. (N. Y.) Pr. 385 (1857). LIABILITY ON SUBSISTING CONTRACTS. 363 their demands before the first dividend is made and who are not precluded from presenting them by the statute requiring claims to be presented within a limited pei'iod after notice, may upon presenting them before a second dividend is made, share in the distribution upon an equality with those who participated in the first dividend.^ Sec. 153. Same— Liability on Subsisting Contracts. — After such second dividend shall have been made, the receiver shall not be answerable to any creditor of such corporation, or to any person having claims against such corporation, by virtue of any open or subsisting engagement, unless the demands of such creditor shall have been exhibited, and the engage- ments upon which such claims are founded shall have been presented to the said receivers, in detail and in writing, before or at the time specified by them in their notice of a second dividend.^ Sec. 154. Same— Distribution of Surplus.— If after the second dividend is made there shall remain any surplus in the hands of the receivers, they shall dis- tribute the same among the stockholders of such corporation, in proportion to the respective amounts paid in by them, severally, on their shares of stock.^ See. 155. Same — Determination of Suit Pending — Disposition of Amount Retained.— When any suit pend- ing at the time of the second dividend, shall be terminated, they shall apply the moneys retained in their hands for that purpose, to the payment of the amount recovered, and their necessary charges and 1 See Matter of Harmony Fire & ^ 4 i^^. y. r. s., 8th ed., p. 2684, Marine Ins. Co., 45 N. T. .310 (1871) ; § 82. aff. 9 Abb. (N. T.) Pr. N. S. 347. ' i N. Y. R. S., 8th ed., p. 2684, As to right to participate in divi- § 83. dends, see ante, § 150c. 364 CONTROL OP RECEIVERS — FILLING VACANCY. expenses ; and if nothing shall have been recovered, they shall distribute such moneys, after deducting- their expenses and costs, among the creditors and stockholders of the corporation, in the same manner as herein directed in respect to a second dividend. Sec. 156. Same— Control— Accounting— Filling Vacancy. — The receivers shall be subject to the control of the court of chancery, and may be compelled to account at any time ; they may be removed by the court, and any vacancy created by such removal, by death or otherwise, may be supplied by the court.^ Sec. 156a. Same— Direction and control.— It has been said that, independent of the general jurisdiction of the court over receivers as officers of the court, a general power is given by the above section^ to direct and control receivers of insolvent corporations in reference to the discharge of their duties.* If an order directing the receiver of a corporation as to the manner in which he shall proceed in giving notice of, and making the sale of corporate property, is irregular or im- provident, its correction should be sought by a motion before the court that made it. An independent action will not lie for that purpose, even though the plaintiff is not a party to the proceeding in which the order was made. Such an order cannot be questioned in a collateral action broiighf by the stockholder of the corporation whose property was sold.^ Sec. 156b. Same — Application for direction. — Where Upon the application of the receiver of a corporation directions are given by the court as to the manner of making a sale of the property to the corporation in his hands, such directions can- not be assailed in the collateral action on the ground that they were in etfect procured by a judgment creditor of the » 4 N. T. R. S., 8th ed., p. 2684, * Holbrook v. Receivers of Amer- § 84. ican Fire Ins. Co., 6 Paige Ch. (N. 2 4 N. T. R. S., 8th ed., p. 2684, T.) 220, 226 (1836). § 8.5. 5 liibby v. Rosekrans, 55 Barb. 8 4 N. Y. R. S., 8th ed., p. 2684, (IT. T.) 202 (1869). §85; supra, § 156. FINAL ACCOUNTING OF KECEIVEK. 365 corporation who then was and still is a justice of the court in which the judgment was procured.^ Sec. 156c. Same — Removal — ^Appointment of successor. — A re- ceiver in an action against an insolvent corporation should not be removed without knowledge of the application having been given to the plaintiff in the action at whose instance he was appointed.^ It has been said that a receiver of an insolvent corporation appointed in the first judicial district, in an action pending therein, cannot be removed upon an application made in the third judicial district. Even when the court of one judicial district having no power under the statute ^ to remove a re- ceiver appointed in an action pending in another judicial district, it has no power under such statute to appoint his successor. To accomplish that end the proceedings must be committed to the district in which the action is pending.* Sec. 157. Same — Final Account. — Within three months after the time herein prescribed for making a second dividend, the receivers shall render a full and accurate account of all their proceedings to the court of chancery, on oath, w^hich shall be referred to a master to examine and report thereon.* Sec. 158, Same.— Notice of Final Account— Where Pub- lished. — Previous to rendering such account the re- ceivers shall insert a notice of their intention to present the same, once in each week, for three weeks, in the state paper, and in a newspaper of the county in which notices of dividends are herein required to be inserted, specifying the time and place at which such an account will be rendered.^ 1 Libby v. Eosekrans, 55 Barb. provement Co., 25 Hun (N. T.) 376 (N. Y.) 202 (1869). (1881). 2 Attrill V. Kockaway Beach Im- « 4 N. T. K. S., 8th ed., p. 2684, provement Co., 25 Hun, (JST. T.) 376 § 86. (1881). 6 4 If . Y. E. S., 8th ed., p. 2684, 8 L. 1880, c. 537. § 87. * Attrill V. Eockaway Beach Im- 366 PASSING ACCOUNTS OF EECEIVER. Sec. 159. Same— Keference on duty of Referee,— The master to whom such account shall be referred shall hear and examine the proofs, vouchers and docu- ments offered for or against such account, and shall report thereon fully to the court. ^ Sec. 160. Same— Accounting of Receivers— Passing Accounts.— Upon the coming in of such report the court shall hear the allegations of all concerned therein, and shall allow or disallow such account, and decree the same to be final and conclusive upon all the creditors of such corporation, upon all per- sons who have claims against it, upon any open or subsisting engagement, and upon all the stockholders of such corporation. Such receivers shall also ac- count from time to time in the same manner, and with the like effect, for all moneys which shall come to their hands after the rendering of such account,, and for all moneys which shall have been retain- ed by them for any of the purposes hereinbefore specified, and shall pay into court all unclaimed dividends.^ Sec. 160a. Same — Fees of — AUo-wanceon mortgage foreclosure. — It is said by the court of appeals in the case of the United States Trust Co. of New York v. W. S. & B. R. Co.,^ that the act of 1883 * in relation to receivers of corporations including- the second section thereof in reference to the fees of receivers applies only to receivers of corporations appointed in proceed- ings in bankruptcy, and a receiver appointed in an action to foreclose a#mortgage executed by the corporation is not entitled to the fees specified in said action. The allowance of commissions to such a receiver is governed by the Code of 1 4 N. Y. R. S., 8th ed., p. 2684, ' 101 N. Y. 478 (1886). § 88. « L, 1883, c. 878, §.2; 2 c R. S., 2 4 N. Y. R. S., 8th ed., p. 2684, 8th ed. p. 2675. §89 ALLOWANCE — MORTGAGE PORECLOSUEE. 367 Civil Procedure ^ providing for the allowance by the court or the judge where not "otherwise specially described by statute." » N. Y. Code Civ. Proc. § 3320. CHAPTER X. DISSOLUTION OF CORPORATION— INVOLUNTARY DISSOLUTION. SBQTJESTKATION — ACTION TO DISSOLVE — PLEADINGS AND PARTIES — EFFECT OF — JURISDICTION TO DISSOLVE — GROUNDS FOB DISSOLUTION — WHO CAN APPLY FOR — SUR- RENDER OF CHARTER — WAIVER OF FORFEITURE — DECLAR- ING FORFEITURE — JUDGMENT NECESSARY — BY WHOM ACTION TO BE BROUGHT — LEAVE TO SUE — TEMPORARY IN- JUNCTION — APPOINTMENT OF RECEIVBR--CHARACTER OP OFFICE — EFFECT OF APPOINTMENT SETTING ASIDE AP- POINTMENT — DUTIES AND POWERS OF RECEIVERS — ACTION AGAINST STOCKHOLDERS — JUDGMENT OF DISSOLUTION — IJA.BILITY OF DIRECTORS AND STOCKHOLDERS — ACTION BY ATTORNEY-GENERAL — LEAVE — GROUNDS OF ACTION — JURY TRIAL — FORM OF JUDGMENT — JUDGMENT ROLL IN- JUNCTION AGAINST CREDITORS — BRINGING IN CREDITORS SUSPENSION AND REMOVAL OF OFFICER ACTION AGAINST STOCKHOLDER. Sec. 161. Sequestration, etc. — Action by judgment creditor for. Skc. Idla. Sequestration of effects — How secured — Jurisdiction. Sec. 161b, Same— Who may apply for. Sec. 161c. Same— Motion for sequestration. Skc. 161d. Same — Jurisdiction of court to appoint receiver. Sec. 161e. Same — How appointed. Sec. laif. Same— Unliquidated debt— Set-off. Sec. 161g. Same — Action by receiver against stockholdeE — ^Discharge of receiver. Sec. 161h. Same — Surrender of franchise. Sec. 162. Same — Action to dissolve — Grounds for. Sec. 162a. Same — Pleadings. Sec. 162b, 6ame — Parties. ANALYSIS OF CHAPTER. 369 Sec. 162c. Same — ^Action when terminated. Sec. 162d. Same — Effect of dissolution. Sec. 162e. Same — Who may bring action. Sec. 162f. Same — Jurisdiction to dissolve. Sec. 162g. Same — Grounds for dissolution—Abuse and misuser of power. Sec. 162h. Same — Non-compliance. Sec. 162i. Same — Breach of trust. Sec. 162j. Same — Change of business. Sec. 162k. Same — Death of members. Sec. 1621. Same — Failure to elect officers. Sec. 162m. Same — Failure to do business or file return. Sec. 162n. Same — Failure to pay debts. Sec. 162o. Same— Insolvency — Meaning of. Sec. 162p. Same — Forfeiture of franchise. Sec. 162q. Same — State alone can ask. Sec. 162r. Same — How ascertained. Sec. 162s. Same — Suspension or abandonment of business. Sec. 162t. Same — Suspension. Sec. 162u. Same— What amounts to a suspension. Sec. 162v. Same — Suspension of business for a year. Sec. 162w. Same — Failure to organize. Sec. 162x. Same — Accidental negligence or mistake. Sec. 162y. Same — Excusing forfeiture. Sec. 162z. Same — Failure to perform duty. Sec 162ai. Same — General assignment for benefit of creditors. Sec. 162bi. Same — Implied conditions — Failure to perform. Sec. 162ei. Same — Misuser and nonuser. Sec. 162di. Same — Surrender of charter hy — Inferred when. Sec. 162ei. Same — Waiver of forfeiture. Sec. 162fi. Same — Proceedings to declare forfeited. Sec. 162gi. Same — Suit by Attorney-General — Discretion of Court, Sec. 162hi. Same — When suit to be brought. Sec. 16211. game — Where to be brought. Sec. 162j^ Same— How forfeiture declared. Sec. 162ki. Same — When dissolution takes place. Sec. 162U. Same — Judgment of forfeiture necessary. Sec. 163. Same— By whom to be brought. Sec. 163a. Same — ^Who may apply. Sec. 163b. Same — Creditors at large. Sec. 163c. Same — Leave to sue. Sec. 163d. Same — Parties to action — Lessee. Sec. 163e. Same — Pleadings. Sec. 164. Same — Temporary injunction. Sec. 164a. Injunction — Who may grant. Sec. 164b. Same — When Granted. Sec. 164c. Same— Receiver — Appointment by special term. Sec. 164d. Same — Powers. Sec. 165, Same— Permanent and Temporary Receiver— Power, etc., of tern- porary receiver. 24 370 ANALYSIS OF CHAPTER. Sec. 165a. Receiver — Character of office. 1 Sec. 165b. Same — Effect of appointment. Sec. 165c. Same — Business — How transacted. Sec. 165d. Same — When appointed. Sec. 165e. Same — ^Duty of officer to oppose — Appointment. Sec. 165f. Same — Who may have appointed. Sec. 165g. Same — Where motion for made. Sec. 165h. Same — Order appointing — Depository of funds. Sec. 165i. Same — Setting aside appointment. Sec. 165j. Same — Removal, etc., of receiver. Sec. 16ok. Same — Protection of the receiver. Sec. 1651. Same — Duties and powers of receiver. Sec. 165m. Same^Unpaid subscriptions — Collection of. Sec. 165n. Same — Dividends wrongfully paid— Action to recover. Sec. 165o. Same — Examination of debtor. Sec. 165p. Same — Sale of property. Sec. 165q. Same — Compensation. Sec. 166. Same — Additional powers and duties may be conferred upon tem- porary receiver. Sec. 167. Same — Powers and duties of permanent receivers. Sec. 167a. Same — Title and possession of. Sec. 168. Same — Making stockholders, etc., parties. Sec. 168a. Same — Bringing in stockholders — Voluntary appearance- Effect of. Sec. 169 — Same — When separate action may be brought against stockholders, etc. Sec. 170. Same — Proceedings in action — Ascertaining defendant's liability. Sec. 171. Same — Judgment — Distribution of corporate property. Sec. 171a. Decree of sequestration — Effect of. Sec. 171b. Same — Payment of debts. Sec. 171c. Same — References. Sec. 171d. Same — Interest. Sec. 171e. Same — Employees' salaries. Sec. 171f. Same — Officers' salaries. Sec. 172. Same— Subscriptions to stock — Recovery of. Sec. 172a. Same — Liability of stockholders. Sec. 172b. Same— Who are stockholders. Sec. 173. Same — ^Liabilities of directors and stockholders. Sec. 173a. Same — Failure to pay debts — Liability of stockholders. Sec. 174. Same— Limiting effect of article. Sec. 174a. Same — Charter liabilities. Sec. 175. Same — Proceeding by the people — Action by attorney-general — ■ Direction by legislature. Sec. 175a. Action to forfeit charter — By whom brought. Sec. 176. Same — Leave of court to sue — Grounds for annulling charter. Sec. 176a. Application for leave to sue. Sec. 176b. Same — Question passed upon by court. Sec. 176c. Same — Leave granted ex parte. Sec. 176d. Same — Notice of application. SEQUESTKATION — JUDGMENT CKEDITOR. 371 Sec. 176e. Same — Leave not properly granted — Effect. Sec. n6f. Same — Keview and reversal. Sec. 176g. Same — Parties. Sec. 176h. Same — Grounds of action — Non-compliance. Sec. 176i. Same — Sm-render of corporate rights. Sec. 176j. Same — Attachment against directors. Sec. 177. Same— Leave to sue — When and how granted. Sec. 178. Same — Action triable by jury. Sec. 178a. Same — Discontinuance. Sec. 179. Same — Form of judgment. Sec. 180. Same — Injunction may be granted. Sec. 181. Same — Judgment roll to be filed and published. Sec. 182. Same — The corporations excepted from certain articles of this title. Sec. 182a. Same — Compelling trustees to execute trust. Sec. 182b. Same — Religious corporation — Removal of trusteesl Sec. 182c. Same — Trustees of benevolent societies — Contract for legis- lative appropriation. Sec. 182d. Same — Educational corporations — Sciences and arts. Sec. 183. Same — Evidence — Officers and agents may be compelled to testify. Sec. 184. Same — Actions by creditors — Injunction staying. Sec. 184a. Same — Injunction staying suit. Sec. 184b. Same — Restraining action to obtain preference. Sec. 184c. Same — Against stockholder. Sec. 185. Same — Creditors may be brought in. Sec. 185a. Same — Bringing in creditors. Sec. 185b. Same — Failure to come in. Sec. 185c. Same — Misleading statements of receiver. Sec. 186. Same — When attorney-general must bring action. Sec. 187. Same — Injunction against corporations in certain cases — Requi- sites of. Sec. 187a. Same— Suspension of business by injunction. Sec. 187b. Same — Notice of application — ^Illegal business. Sec. 187c. Same — Restraining removal of treasurer. Sec. 188. Same — Receiver — Order appointing in certain cases. Sec. 188a. Same — "Vacating order. Sec. 189. Same — Officer — Judicial suspension or removal of. Sec. 190. Same — Application of the last three sections. Sec. 191. Same — Action against stockholder — Misnomer, etc., not available. Sec. 161. Sequestration, etc. — Action Iby Judgment Creditor for.— Where final judgment for a sum of money has been rendered against a corporation created by or under the laws of the state, and an execution issued thereupon to the sheriff of the county, where the corporation transacts its general 372 SEQUESTKATION HOW SECURED. business, or where its principal oflSce is located, has been returned wholly or partly unsatisfied, the judg- ment xireditor may maintain an action to procure a judgment, sequestrating the property of the corpor- ation, and providing for a distribution thereof as prescribed in section 1793 of this act.^ Sec. 161a. Sequestration of effects — Hotw secured — Jurisdic- tion. — The sequestration of the effects of a corporation and the appointment of a receiver may be obtained by summary proceedings in equity, that is, by petition on judgment and return of execution unsatisfied. But it is thought that a new action may be available for that purpose under the Code of Civil Procedure.^ In New York a superior court has full and complete juris- diction of a civil action against a corporation organized and incorporated under the laws of that state, where the corpo- ration has an office and place of business in that state, to pro- cure a dissolution of the corporation and a distribution of its effects.^ But to accomplish that purpose the suit must be prosecuted for the benefit of all the creditors ; for the trust is created for the benefit of all the creditors as a class, and for that reason all are entitled to participate ratably in the fund ; and it is thought that one creditor cannot obtain priority by superior diligence, either by a creditor's bill or by supple- mentary proceedings under the statute regulating executions, and appropriate to his own use the fund in which all the creditors have a common interest.* 1 N. T. Code Civ. Proc, § 1784. « See "Van Pelt v. United States A corporation is not necessarily Shoeheel Co., 35 N. T. Super. Ct. dissolved by pfoceedings under this (3 J. & S.) 117 (1872); Morgan v. New section. Mann v. Pentz, 3 N. Y. 415 York & A. R. Co., 10 Paige Ch. (N. (1850); rev'g 2 Sandf. Ch. (N. Y.) Y.) 290(184.3); s. c. 40 Am. Dec. 244. 257. * See Mann v. Pentz, 3 N. Y. 415 2 See Coming v. Mohawk Valley (1850) ; Morgan v. New York & A. R. Ins. Co., 11 How. (N. Y) Pr. 191 Co., 10 Paige Ch. 290 (N. Y.) (1843); (1855); Morgan V. New York & A. s. c. 40 Am. Dec. 244; Umsted v. R. Co., 10 Paige Ch. 290 (1863); Buskirk, 17 Ohio St. 113 (1866); 8. c. 40 Am.Dec. 244. Coleman v. White. 14 Wis. 701 "WHO MAY APPIiY FOK SEQUESTRATION. 373 The fact that there are stockholders delinquent upon which the defendant has fully paid, which unpaid calls are more than sufficient to pay the debts of the corporation, will not war- rant a limiting of the sequestration to the amount of the debt of the creditor in whose suit it is ordered, for it carries the whole assets of the corporation into the bonds of the receiver .^ But a corporation is not dissolved by the appointment of a receiver and a sequestration of its property .^ The remedy of a creditor of an insolvent corporation to sequester its property under the Revised Statutes may be pui'sued by an action under the Code of Procedure.^ Sec. 161b. Same— ■Who may apply for.— Only creditors who have secured a judgment, and issued an execution which has been returned unsatisfied, can apply for a sequestration under the statute, of the assets of a corporation.* A creditor of a corporation whose execution has been returned unsatisfied can proceed by bill as well as by petition under the article of the Revised Statutes relative to proceed- ings against corporations in equity to obtain a sequestration of the effects of the corporation.^ The remedy of a sequestration against a corporation must be based on a final judgment and the issue and return of an execution unsatisfied. Where, therefore, the judgment on which the sequestration proceedings are based is opened and the defendant is allowed to come in and defend, but the judg- ment is ordered to stand as security, there is no longer a final judgment and the sequestration proceedings must fall.^ (1862); 8. c. 80 Am. Dec. 797; Adler ' N. Y. Code Civ. Proc, § 1784; V. Milwaukee P. B. Manufg. Co., 13 supra, § 161. See Van Pelt v. United Wis. 57 (1860); Pollard V. Bailey, 87 States Metallic Spring Co., 13 Abb. U.S. (20 Wall.) .520 (1874); bk. 22 L. (N. Y.)Pr. N. S. 325 (1872). ed. 376. * Bliven v. Peru Steel & Iron Co., i See Morgan v. New York & A. E. 9 Abb. (N. Y.) N. C. 205 (1881). Co., 10 Paige Ch. (N. Y.) 290 (184.3) ; ^ See N. Y. Code Civ. Proc, § 1784; s. c. 40 Am. Dec. 244; Mann v. supra, § 161; Judson v. Kossie Pentz, 2 Sandf. Ch. (N. Y.) 270 (1850) ; Galena Co., 9 Paige Ch. 598 (1848) ; 2 Huguenot Nat. Bk. v. Studwell, s. c. 38 Am. Dec. 569. 6 Daly (N. Y.) 13 (1875) ; rev'd on ^ Rodbum v. Utica, I. & E. R. E. another point, 74 N. Y. 621. Co., 28 Hun, (N. Y.) 369 (1882.) 37-i MOTION FOE SEQUESTRATION. But where an action is brought to remove an impediment or vacate a prior encumbrance, the code^ has no application.^ Before an action for this object can be maintained it is indis- pensable that an execution and judgment, or judgments, shall have issued.^ • Sec. 1610. Same — Motion for sequestration. — A motion for sequestration of the property of a corporation or the appoint- • ment of a receiver, must be made in the district in which the principal place of business is situated, except that in actions by the attorney-general, when it appears that sequestration is a necessary incident if made in the district where the action is triable.* Sec. 161d. Same — Jurisdiction of court to appoint receiver. — It is thought that the jurisdiction of the court to entertain the proceedings under this section does not depend upon the truth of the facts alleged in the petition ; if it alleges suffi- cient facts and the court is called upon to decide whether they are established, its determination, whether rightful or not, does not affect its jurisdiction. If the appointment of a receiver is binding upon the corporation no one else can question it.® Where an action was brought under the code ^ to sequester the property of the defendant, one Hobbs was appointed a , temporary receiver by an order made May 21, 1883, and on June 11, 1883, upon the default of the company, a final decree was made appointing him a permanent receiver thereof. No notice of the proceeding was given to the attorney-general, ' N. Y. Code Civ. Proc, 1784; (1886); Lichtenberg v. Hertdf elder, supra, 161. 33 Hun (N. Y.) 51 (1884); Bowe v. " Easton National Bank v. Buffalo Arnold, 31 Hun (N. Y. ) 256 (ISS-S) ; Chem. Works & Bushwick Chemical Gardner v. Lansing, 28 Hun (N. Y.) Works, 15 N. Y.^t. Eep. 924 (1888). 413 (1882) ; Jones v. Green, 68 U. S. 3 Easton Nat. Bk. v. Buffalo (1 Wall.) 330 (1863); bk. 17 L. ed. Chem. & Bushwick Chemical Works, 653. 15 N. Y. St. Rep. 924, 926 (1888). See * Supreme Court Rules, No. 81, Adsit V. Butler, 87 N. Y. 585 (1882); ed. 1888. Mechanics' & T. Bank of Jersey City * Whittlesey v. Frantz, 74 N. Y. V. Dakin, 51 N. Y. 519 (1873); Bost- 456 (1878). wick V. Scott, 40 Hun (N. T.) 212 « N. Y. Code Civ. Proc, § 1784; supra, § 161. APPOINTMENT OF RECEIVER. 375 as required, by chapter 378 of the Laws of 1883, which took «fEect May 11, 1883, In April, 1884, due notice being given to the attorney-general an order was entered providing for Hobbs' appointment as receiver nunc pro tunc on the notice so served. The court held, that without deciding whether or not a jurisdictional defect could be cured by an amendatory order, that the order made in this case had the effect from its date of making valid the appointment of the receiver.^ Sec. 161e. Same — ^How appointed. — The court will not grant a sequestration or appoint a receiver of a corporation against whom an execution has been returned unsatisfied upon an ex parte application of the judgment creditor. But upon filing a petition, duly verified, an oitier to show cause at a future day, why the prayer of the petitioner should not be granted maybe entered and an injunction may be allowed restraining the officers of the company from selling, assigning, trans- ferring or encumbering the property or effects of the cor- poration in the meantime.^ Sec. 161f. Same — Unliquidated debt — Set-off. — ^It has been said that a receiver of an insolvent corporation appointed under the act of the 18th of January, 1836, or appointed by the court of chancery in accordance with the provisions of the Revised Statutes relative to proceeding again.st corpo- rations in equity, is bound to offset a liquidated debt against an unliquidated debt due from the corporation against the same person ; in the same manner as trustees of insolvent debtors are bound to offset cross-demands arising from mutual credits as well as from mutual debts. In such cases the right of set-off is not confined to liquidated debts, or such as might have been offset in a suit at law between the original parties, but it also extends to all mutual credit arising ex contractu of such mutual parties.^ Sec. 161g. Same — Action by receiver against stockholder — Discharge of receiver. — A receiver of a corporation, appointed upon the sequestration of its property on the return of an 1 Morrison v. Menhaden Co., 37 ' Holbrook v. Eecelver of Ameri- Hun (IS. Y.) 522 (1885). can Fire Ins. Co., 6 Paige Ch. (N. 2 Devoe v. Ithaca & O. R. Co., 5 T.)220, 226 (1836). Paige Ch. (N. T.) 521 (1835). 376 STJEKENDER OF FfiANCHISB. execution, cannot maintain an action against its stockholders to enforce their personal liability.^ And a judgment creditor who files a bill against stock- holders after the return of execution, obtains no preference.^ On payment of plaintiff's judgment against a corporation not a moneyed one, and in the absence of evidence that any other creditor has sought to avail himself of the action, the court may order it discontinued and the receiver discharged.^ Sec. 161h. Same— Surrender of franchise.— In order to infer a surrender of corporate franchises from insolvency, suspen- sion of business, etc., for less than a year, the circumstances must be such as to show that the corporation has lost all power to continue or to resume its business.* It is said in Bradt v. Benedict,^ that the statute declaring a corporation, which for one whole year, has remained insolvent or suspended its ordinary business, shall be deemed to have surrendered its franchises, is cumulative, and not a limitation within the common law rule previously existing in this state. The Code of Civil Procedure® does not supersede the attorney-general's power to institute proceedings to dissolve, nor the power of a general creditor, without a judgment to institute proceedings to restrain the improper exercise of certain powers, or to procure payment of his debt. Each proceeding may go on, with the rights peculiar to each, subject to the power of the court to restrain unnecessary suits.'' Sec. 163. Same — Action to Dissolve— Grounds for. — In either of the following cases, an action to procure 1 Famsworth v. Wood, 91 N. T. ^ Angell v. Silsbury, 19 How. (N. 808(1883). T.)Pr. 48(1859). 2 Tallmadge w. Fishkill Iron Co., « Bradt v. Benedict, 17 N. T. 93 4 Barb. (N. T.) 382 (1848); Morgan (1858). V. N. T. & A. E. Co., 10 Paige Ch. « 17 N. T. 93 (1858). 290(1843); s. c. 40 Am. Dec. 244; 6 jf . y. Code Civ. Proc, § 1784', 2 N. T. Leg. Obs. 246. See Briggs supra, 161. T. Penniman, 8 Cow. (N. T.) 387 ' Dambman v. Empire Mills, 12 (1826); s. c. 18 Am. Dec. 454; Bank Barb. (N. Y.) 341 (1851). of Poughkeepsie v. Ibbotson, 24 Wend. (N. T.) 473 (1840). GKOUNDS OP ACTION TO DISSOLVE. 37T a judgment, dissolving a corporation created by or under the laws of the state, and forfeiting its rights, privileges, and franchises, may be maintained, as prescribed in the next section : 1. Where the corporation has remained insolvent for at least one year. 2. Where it has neglected or refused, for at least one year, to pay and discharge its notes or other evidences of debt. 3. Where it has suspended its ordinary and lawful business for at least one year.^ 4. If it has banking powers, or power to make loans on pledges or deposits, or to make insurances, where it becomes insolvent or unable to pay its debts, or has violated any provision of the act, by or under which it was incorporated, or of any other act binding upon it.^ Sec. 162a. Same— Pleadings. — In an action to dissolve a cor- poration on the ground that it has remained insolvent for at least one year, and that it has suspended its ordinary and lawful business at least one year, it is immaterial whether the corporation is a manufacturing corporation or not, inas- much as the code ^ relates to all corporations created by or under the laws of the state of New York.* A complaint by a stockholder to dissolve a corporation on the ground that for a year it has been insolvent, or neglected to pay its debts, or suspended its business, and which alleges that part of the debt has been due for a year, that the whole is now due, that payment has been demanded and refused on the ground of lack of assets, is not good, because, it shows neither insolvency for a year, nor neglect of payment for a year, the time of demand not being shown ; and an allegation 1 See ante, § 1.38d. * People v. Excelsior Gas Light ^ TS. T. Code Civ. Proc, § 1785. Co., 8 N. Y. Civ. Proe. Kep. 390 3N. Y. Code Civ. Proc, § 1785; (1886). supra, § 164. 378 SUFFICIENCY OF PLEADINGS. of " practical suspension to a great extent for a whole or greater part of a year," is also insufficient.^ But in a stockholder's action to dissolve a corporation, the complaint states a good cause of action for dissolution, because of insolvency and suspension, of business within the statute.^ Where it alleges that the debts of a company have remained unsatisfied for many years, and will continue to so remain, because it is not within means of payment, and the corporation has become and is insolvent and unable to pay its debts, and has remained insolvent for one year last passed ; that it is indebted in large sums of money to various persons and has no means whatever of liquidating its outstanding indebtedness, and that it has had the means for more than a year last passed ; and that though its property consist of oil lands, to a certain extent developed, but little, if any, oil for many years has been taken from its wells and mines, and that the supply of oil has gradually diminished until the ■operation of the wells has ceased, and that the principal resources of the corporation were their production of oil ; and that by reason of the failure of the wells and mines to furnish oil, and the failure to operate, the company has become and is crippled in its supply, rendering it solely impossible to continue the existence of the same without loss or damage.* Where in an action to dissolve a corporation on the ground that it has remained insolvent for at least one year, the com- plaint alleged that the defendant had been unable to meet its obligation and had failed to pay a judgment therein set forth ; that it had not a dollar in the treasury and was insolvent and had been so for at least a year past, the court held that an answer alleging payment of the judgment and averring that the corporation had no liabilities to creditors by way of judg- ments unsatisfied, was insufficient ; that the corporation may be insolvent against which no judgment have been recovered.* 1 Bliven V. Peru Steel & Iron Co., Co., 17 Abb. (N. T.) N. C. 115 9 Abb. (N. Y.) N. C. 205 (1881). (1885). 2 N. Y. Code Civ. Proc, § 1785; * People v. Excelsior Gas Light Co., ante, § 162. 8 N. T. Civ. Proc. Rep., 390 (1886). ' Swords V. Northern Light Oil PARTIES TO ACTION TO DISSOLVE. 379 Sec. 162b. Same — Parties. — The Corporation to be dissolved, Is a necessary party to a bill in chancery to decree the disso- lution of such corporation and to have its property and effects distributed among its creditors and stockholders.^ It is thought that where it has legally assigned some of its fran- chises to another, such franchises can only be annulled in an action against the corporation to which they have been assigned.^ But where an action is brought by the people to dissolve a corporation, and forfeit its rights, privileges and franchises, one to whom it has leased property to be lield during the term of its corporate existence has no right to be made a party defendant under the Code of Civil Pro- cedure,^ in order to contest the forfeiture of its franchises.* The manner in which creditors of a corporation are to make themselves parties to a suit commenced against a cor- poration to wind up its affairs, must be substantially the same as that in which creditors of a deceased individual make themselves parties to a suit for the settlement of all its debts and credits, by going in before the master under a decree and proving the debts.^ Sec. 162c. Same— Action when terminated.— The effect of the expiration of the charter of a corporation is to work its disso- lution,^ consequently an action against a corporation, either foreign or domestic, is terminated by the expiration of its ■charter without a judicial declaration of dissolution.^ Sec. 162a. Same— Effect of dissolution.— The dissolution of a, corporation, either from expiry of its charter, without an action or by action and judgment of the court for that purpose, terminates all pending actions, and all subsequent proceedings thereunder are void.* Consequently after dissor ' Mickles v. Rochester City Bank, Paige Ch. (S. Y.) 598 (1842) ; s. c. 11 Paige Ch. (N. T.) 118 (1844); 38 Am. Dec. 569. s. c 42 Am. Dec. 103. " People v. Manhattan Co., 9 2 People V. Alhany & Vt. E. Co., Wend. (N. T.) 351, 382 (1832). 15 Hun (N. T.) 126 (1878). ' Sturges v-. Vanderbilt, 73 N. T. « TSr. Y. Code Civ. Proc, § 452. 384 (1878), modifying 11 Hun (N. * People V. Albany & Vt. R. Co., Y.) 136. 15 Hun (N. Y.) 126 (1878). ' Sturges v. Vanderbilt, 73 N. T. « Judson V. Rossie Galena Co., 9 384 (1878), modifying 11 Hun (N. Y.) 380 WHO MAY BEING ACTION. lution, process to commence a suit cannot be served upon an officer of the company.^ After an order enjoining a corporation from exercising its franchises, sequestering its effects, and continuing its exist- ence so far only as may be necessary^to enable a receiver to be appointed and dissolving it for all other purposes, it can make no contract on which any claim payable out of its assets can be based ; ^ but a decree dissolving a corporation " except for certain purposes," does not so extinguish it that it cannot be revived.^ The creditors of a dissolved corporation have no equitable lien on its assets in the hands of a third person.* But it has been said that on dissolution of a corporation, the interests of stockholders become equitable rights to proportionate shares of corporate property after payment of debts, and in the adjustment each stockholder is to be charged with what he owes the corporation.^ The real estate belonging to a corporation does not revert to the grantor on dissolution.® Sec. 162e. Same— "Who may bring action.— It is well estab- lished that, in the absence of statutory provisions to that effect, an individual cannot maintain an action for the disso- lution of a corporation.'^ 136; McOuUoch v. Norwood, 58 N. « Heath v. Barmore, 50 N. T. 320 T. 562 (1874), modifying 36 N. Y. (1872). As to title to real estate on Super. Ct. (6 J. & S.) 180 (1873). dissolution, see Bingham v. Weider- 1 Hetzel V. Tannehill Silver Min. wax, 1 N. Y. 509 (1848) ; Towar v. Co., 4 Abb. (N. Y.) N. C. 40 (1877). Hale, 46 Barb. (N. Y.) 361 (1866). 2 Carrington v. Connecticut F. & ' Denike v. New York and Rosen- M. Ins. Co., 1 Bosw. (N. Y.) 152 dale Lime & Cement Co., 80 N. Y. (1S57). 599 (1880); Verplanckv. Mercantile s Lea V. Anpriean Atl. & Pao. Ins. Co., 1 Edw. Ch. (N. Y.) 8. Can. Co., 3 Abb. (N. Y.) Pr. N. S. (1831) ; Wilmersdoerffer v. Lake 1 (1867). Mahopac. Imp. Co., 18 Hun (N. Y.) 4 Tinkhamv. Borst, 31 Barb. (N. 387 (1879); Slee v. Bloom, 5 Johns, Y.) 407 (1860), reversing 15 How. Ch. (N. Y.) 366 (1821); North v. (N. Y.) Pr. 204 (1857). State, 107 Ind. 356 (1886) ; Briggs v. 6 James v. Woodruff, 10 Paige Ch. Cape Cod Ship Canal Co., 137 Mass. (N. Y.) 541 (1844); s. c. 2 Den. (N. 71, 72 (1884); Rice v. National Bank, Y.) 574. 126 Mass. 300, 304 (1879); Folger v. stockholder's action to dissolve. 381 But a creditor or a stockholder of a corporation may bring an action for the dissolution of the corporation and the wind- ing up of its affairs.^ The neglect or failure of the company for more than a year to pay its debts is sufficient to justify a stockholder thereof in instituting proceedings for its disso- lution ; ^ but the fact that the property of a corporation has been lost does not give a portion of the stockholders a stand- ing to ask for a dissolution, whether the lease is lawful or not.* It is thought that the pendency of an attachment suit in another state is no bar to an action in New York, although a judgment in another state might be.* But in a stockholder's action to dissolve a corporation, the •complaint states a good cause of action for dissolution, because of insolvency and suspension of business within the statute,^ where it alleges that the debts of a company have remained unsatisfied for many years, and will continue to so remain because it is without means of payment, and the corporation has become and is insolvent and unable to pa}' its debts, and has remained insolvent for one j^ear last passed ; that it is indebted in large sums of money to various persons and has no means whatever of liquidating its outstanding indebted- ness, and that it has not had the means for more than a year last passed"; and that though its property consists of oil lands, to a certain extent but little if any oil for many years has Columbian Ins. Co., 99 Mass. 267 Banking Co., 2 Sandf. Ch. (N. Y.) <1868) ; s. c. 96 Am. Dec. 747 ; Staut 23 (1844). V. Zulick, 48 N. J. L. (19 Vr.) 599 « Kittredge v. Kellogg Bridge Co., (1886); Strong v. McCagg, 55 Wis. 8 Abb. (N. T.) N. c. 169 (1880); 624, 628 (1882). Ward v. Sea Ins. Co., 7 Paige Ch. 1 See Kittredge v. Kellogg Bridge (N. T.) 294 (1838). ■Co., 8 Abb. (K. T.)N. C. 168(1880); ^ Denike v. New York E. L. & Masters v. Electric Life Ins. Co., 6 C. Co., 80 N. T. 599 (1880). Daly (N. Y.) 457 (1876); Medbury v. < Osgood v. Maguire, 61 Barb. (N. Kochester Frere S. Co., 19 Hun.(]Sr. Y.) 59 (1871); Ward v. Sea Ins. Co., Y.) 500 (1880); Mickles v. Rochester 7 Paige Ch. (N. Y.) 294 (1838). See City Bank, 11 Paige Ch. (N. Y.) 118 Bangs v. Duckinfield, 18 N. Y. 596 (1844); s. c. 42 Am. Dec. 103; Ward (1859); Mann v. Pentz, 3 N. Y. 421 -7. Sea Ins, Co., 7 Paige Ch. (N. Y.) (1850); Mumma v. Potomac Co., 33 HQi (1838); Verplanck v. Mercantile U. S. (8 Pet.) 286 (1834); bk. 8 L. Ins Co., 2 Paige Ch. (N. Y.) 438 ed. 947. <1831); Boisgerard v. New York 382 JURISDICTION TO DISSOLVE CORPORATION. been taken from its wells and mines, and that the supply of oil has gradually diminished until the operation of the wells has ceased, and that the principal resources of the corpo- ration were their production of oil ; and that by reason of the failure of the wells and mines to furn^^ish oil and the failure to operate them the company has become and is grappled in its supply, rendering it solely impossible to continue the existence of the same without loss or damage.^ Where in an action to dissolve a corporation on the ground that it has remained insolvent for at least one year, the complaint alleged that the defendant had been unable to meet its obli- gations and had failed to pay a judgment therein set *forth ; that it had not a dollar in the treasury and was insolvent, and had been so for at least a year past. The court held, that an answer alleging payment of the judgment and averring that the corporation had no liabilities to creditors by way of judg- ments instituted, was insufficient; that the corporation may be insolvent against which no judgments have been recovered.^ Sec. 162f. Same — Jurisdiction to dissolve A corporation owes its life to the sovereign power of the state under which it is created, and does not cease to exist until its dissolution is accomplished in the manner provided by law. The cir- cumstances under which it shall forfeit or be deprived of life depend upon the sovereignity or state creating it.^ Until dissolved by a judicial proceeding on behalf of the govern- ment that created them all corporations must be regarded by the courts, and their duties and privileges enforced and pro- tected.* Cause for the forfeiture of a corporate franchise and its dissolution cannot be taken advantage of in any man- ner other than by a direct proceeding instituted for that pur- pose against the corporation by or on behalf of the govern- ment that cMated it.^ Independent of statute neither a court of law nor a court 1 People V. Excelsior Gas Light * Laflin & R. Powder Co. v. Sin- Co., 8 N. Y. Civ. Proe. Rep. 390 sheimer, 46 Md. 315 (1876). (1886). 5 Matter of New York Elevated R. 2 Blivenv. Peru Steel & Iron Co., Co., 70 N. Y. .337 (1877); West v. 9 Abb. (N. T.) N. C. 205 (1881). Carolina Life Ins. Co., 3l' Ark. 476 3 Deuike v. New York & R. L. & (1876); Holland v. Heyman, 60 Ga. C. Co., 80 N. Y. 599 (1880). 174 (1878); Meeker v. Chicago Cast POWER TO DISSOLVE LEGAL AND NOT EQUITABLE. 383 of equity has jurisdiction to decree a forfeiture of the charter of a corporation at the suit of an individual.^ The power to dissolve a corporation for cause is legal and not equitable ; ^ and in the absence of a statutory provision a court of equity has no right, by virtue of its inherent powers to decree a dissolution of a corporation or to take away any, of its rights or privileges,^ because such right and power is wholly statutory.* By tlie common law a corporation can be deprived of its franchises only in a court of law by scire facias or information in the nature of a quo warranto ; ° but it is competent for the legislature to give.® Steel Co., 84 111. 276 (1876); Brook- ville & G. Turnpike Co. v. McCarty, 8 Ind. 392 (1856) ; s. c. 65 Am. Dec. 768; Toledo & A. A. E. Co. v. John- son, 49 Mich. 148 (1882) ; New Jersey S. R. Co. V. Long Branch Commis- sioners, 39 N. J. L. (10 Vr.) 35 (1876); State v. Patterson & H. Turnpike Co., 21 N. J. L. (1 Zah.) 9 (1847); Cochran v. Arnold, 58 Pa. St. 399 (1868); Moseby v. Burrow, 52 Tex. 396 (1880) ; State v. Butler, 15 Lea (Tenn.) 104 (1885) ; Crump v. United States Mining Co., 7 Gratt. (Va.) 352 (1851) ; Greenbrier Lumber Co. V. Ward, 30 W. Va. 43 (1887); s. c. 3 S. E. Kep. 227; Moore v. Schop- pert, 22 W. Va. 282 (188.3) ; Mackall V. Chesapeake & O. Canal Co., 94 U. S. (4 Otto) 308 (1876); hk. 24 L. ed. 161 ; Taylor v. Holmes, 14 Fed. Kep. 498 (1882). 1 See ante, § 162e. " See Attorney-General v. Utica Ins. Co., 2 Johns. Ch. (N. T.) 371 (1817) ; Verplanck v. Mercantile Ins. Co., 2 Paige Ch. (N. Y.) 438 (1831); Cady V. Centreville Knit Goods Manuf. Co., 48 Mich. 133 (1882). « Ferris v. Strong, 3 Edw. Ch. (N. Y.) 127 (1837); Verplanck v. Mercantile Ins. Co., 1 Edw. Ch. (N. Y.) 85 (1831); Attorney-General v. Bank of Niagara, 1 Hopk. Ch. (N. Y.) 354 (1825); Strong v. McCagg, 55 Wis. 624 (1882). * Bliven v. Peru Steel & Iron Co., 9 Abb. (N. Y.) N. C. 205 (1881). See Van Pelt v. United States Me- tallic Spring B. & S. H. Co. , 13 Abb. (N. Y.) Pr. N. S. 331 (1872); Ver- planck V. Mercantile Ins. Co., 1 Edw. Ch. (N. Y.) 85 (1831). ' People V. Utica Ins. Co., 15 Johns. (N. Y.) 378 (1817); s. c. 8 Am. Dec. 249; State v. Real Estate Bank, 5 Ark. 595 (1844); s. c. 41 Am. Dec. 109; Baker v. Backus, 32 111. 79, 110 (1863); State v. St. Paul & S. C. R. Co., 35 Minn. 222 (1886); State V. Merchants' Ins. & T. Co., 8 Humph. (Tenn.) 235 (1847); Ames V. Kansas, 111 U. S. 449 (1884) ; bk. 28 L. ed. 482; King v. Pasmore, 3 T. R. 190 (1779). 836 Doyle v. Peer- less Petroleum Co., 44 Barb. (N. Y.) 239 (1865) ; President, etc., v. Tren- ton City Bridge Co., 13 N. J. Eq. (2 Beas.) 57 (1860): Attorney-Gen. eral v. Stevens, 1 N. J. Eq. (1 Saxt.) 369 (1831) ; Attorney-General v. Tudor Ice Co., 104 Mass. 239 (1870); Strong V. McCagg, 55 Wis. 624 (1882). See also post, § 162fi. It is thought, however, that an infor- mation in the nature of a quo war- ranto is the only appropriate means of testing the right to exercise cor- porate franchises as well as the proper remedy for the abuse of such franchises. ' See Parish of Bellport v. Tooker, 384 SCIEE FACIAS AND QUO WAKEANTO. Jurisdiction ^ to a court of equity over corporations, and to prescribe the form of procedure to secure the remedies given by the statute ^ for it has been held that, although the remedy at common law was by writ of scire facias or quo war- ranto, it is within the power of the legislature to change the remedy for reclaiming, by the state, the rights and privileges conferred upon corporations by their charters ; in those cases where there has been a plain misuser or a manifest abuse of its powers and franchises.^ The general rule is, however, that a corporation is not to be deemed dissolved until the forfeiture is judicially ascertained and adjudged.* It is now generally held that a proceeding upon an information in the nature of .a quo warranto iiled by the attorney-general on behalf of the state is the proper mode of trying the issue.® 29 Barb. (N. Y.) 256 (1859); s. c. 21 N. y. 267; People v. Hudson Bank, 6 Cow. (N. T.) 217 (1826); People V. Kingston & M. Turnpike Co., 23 Wend. (N. Y.) 193 (1840); Reed v. Cumberland & O. Canal Co., 65 Me. 132 (1876); Common- ■wealtb V. Commercial Bank, 28 Pa. St. 383 (1857); State v. Bradford, 32 Tt. 50 (1859); State v. Milwaukee, L. S. & W. K. Co., 45 Wis. 579 <1878) ; Terrett v. Taylor, 13 U. S. (9 Cr.) 43 (1815); bk. 3 L. ed. 650. It is a tacit condition, annexed to the creation of every private coi-pora- tion, that it shall be subject to dis- solution by forfeiture of its fran- •chises for wilful misuser or nonuser in regard to matters which go to the essence of the contract between it and the state. 1 See post, i% 162g, 162p, 162z. See also People v. Manhattan Co., «Wend. (N". Y.) 361 (1832); State v. Real Estate Bank, 5 Ark. 595 (1844) ; 8. o. 41 Am. Dec. 109; Terrett v. Taylor, 13 U. S. (9 Cr.) 51 (1815) ; bk. 3 L. ed. 650. 2 See Verplanck v. Mercantile Ins. Co., lEdw. Ch. (N. Y.) 85 (1831); Van Pelt v. United States M. S. B. & Shoe-Heel Co., 35 N. Y. Super. Ct. (3 J. & S.) 116 (1872); Baker v. Backus, 32 111. 79, 110 (1863); New- foundland R. (;o. V. Schack, 40 N. J. Eq. (13 Stew.) 222 (1885). 8 Ward V. Farwell, 97 111. 593 (1881) ; Travellers' Ins. Co. v. Brouse, 83 Ind. 62 (1882) ; Scohey v. Gibson, 17 Ind. 572 (1861); s. c. 79 Am. Dec. 490; Ward v. Hubbard, 62 Tex. 559 (1884) ; Tennessee v. Sneed, 96 U. S. (6 Otto) 69 (1877); bk. 24 L. ed. 610. ♦ Bradt v. Benedict, 17 N. Y. 99 (1858) ; Ormsby v. Vermont Copper Min. Co., 65 Barb. (N. Y.) 360(1873); HolUngshead v. Woodward, 35 Hun (N. Y.)410, 413 (1885); Holland v. Heyman, 60 Ga. 174 (1878) ; State v. Fagan, 22 La. An. 545 (1870); Laflin & R. Powder Co. v. Sinsheimer, 46 Md. 315 (1876); Minnesota Cen. R. Co. V. Melvin, 21 Minn. 344 (1875) ; Moseby v. Burrow, 52 Tex. 396 (1880); Dewey v. St. Albans Trust Co., 56 Vt. 476 (1884); s. c. 48 Am. Rep. 893; Bank of Bethel v. Pah- quioque Bank, 81 U. S. (14 Wall.) 383 (1871); bk. 20 L. ed.840; Taylor V. Holmes, 14 Fed. Rep. 498 (1882). ' Darnell v. State, 48 Ark. 321 GROUNDS FOB DISSOLUTION ABUSE AND MISUSER. 385 The courts proceed with great caution in declaring tlie for- feiture of the franchises of a corporation, and such forfeiture will not be allowed except when there is shown a plain abuse of power, by which the corporation fails to fulfill the design and purpose of its organization.^ It is otherwise in those cases where the corporation has been guilty of acts which by statute are made a cause of forfeiture of its franchise to be a corporation ; and in such cases the court has no discretion in the matter but must declare a forfeiture.^ The court is vested with a discretion to determine whether the corpora- tion shall be ousted of its franchise to be a corporation in those cases where it has abused or misused its corporate powers in any particular as to which it is declared by statute that the act shall operate as a forfeiture.^ The New York city common pleas court has jurisdiction to dissolve and wind up an insolvent corporation, when it has an office for the transaction of business in the city of New York.* Sec. 162g. Same — Grounds for dissolution — Abuse and misuser of power.— The abuse of the powers of corporations, in respect (1886); 8. c. 3 S. W. Rep. 365; State 535 (1841); Commonwealth v. Com- V. Leatherman, 38 Ark. 81 (1881); mercial Bank, 28 Pa. St. 383(1857). Heard v. Talbot, 73 Mass. (7 Gray) 2 People v. Northern R. Co., 5,3 120(1856); State v. Minnesota Cent. Barb. (N. T.) 123 (1869); State v. R. Co., 36 Minn. 246 (1886); s. c. 30 Minnesota Cen. R. Co., 36 Minn. 246 N. W. Rep. 816; State v. Wood, 84 (1886); s. c. 30 N. W. Rep. 816; Mo. 378 (1884); National Docks R. State v. Pennsylvania & O. Canal Co. V. Central R. Co., 32 N. J. Eq. Co., 23 Ohio St. 121 (1872). (5 Stew.) 755 (1880); Greenbrier ^ state v. Oberlin Building Assoc, Lumber Co. v. Ward, 30 W. Va. 43 35 Ohio St. 258 (1879); See, Hart v. (1887); s. c. 3 S. E. Rep. 227. Boston, H. & E. R. Co., 40 Conn. ' People T. Williamsburg Turnpike, 524 (1873); Harris v. Mississippi R. & B. Co., 47 N. Y. 586 (1872); Val. & S. I. R. Co., 51 Miss. 605 Commonwealth V. Franklin Ins. Co., (1875); State v. Peoples Mutual 115 Mass. 278(1874); Harris v. Miss- Ben. Assoc, 42 Ohio St. 579 (1885); issippi Val. & S. I. R. Co., 51 Miss. State v. Central O. Mut. Rel. Assoc, 602 (1875) ; Attorney-General v. 29 Ohio St. 399 (1876); State v. Petersburg & R. R. Co., 6 Ired. (N. Essex Bank, 8 Vt. 489 (1836). C.) L. 469 (1846); State v. Farm- « Masters v. Electric Life Ins. Co., ers' College, 32 Ohio St. 487 (1877); 6 Daly (N. Y.) 455 (1876). State T. Commercial Bank, 10 Ohio 25 386 GROUNDS FOE DISSOLUTION — BREACH OF TRUST. to the notice given of the first meeting, or by reason of other informality in the proceedings of that meeting, will be grounds for its dissolution; ^ but the defect must be taken advantage of by direct proceedings against the corporation for that pur- pose.^ The dissolution of a corporatiofl, for abuse of its powers does not take effect until after being judicially ascertained, and declared.^ Sec. I62h. Same— Non-compliance.— It seems that non-com- pliance with the act of incorporation is, per se a misuser for- feiting the privileges and franchises conferred ; and it is not necessary to work a forfeiture that the neglect or refusal to perform the duties enjoined should proceed from a bad or corrupt motive ; it is enough that the duties be neglected or designedly omitted.* The duties enjoined by an act of incorporation are condi- tions attached to the ground of the franchise conferred ; but a substantial performance is all that is required, whether they be conditions precedent or subsequent.^ But in those cases where the conditions are implied, they are to be more favor- ably construed than conditions expressed.^ Sec. 162i. Same — Breach of trust. — Tt has been said that a breach of trust furnishes grounds for the dissolution of a cor- 1 However, it is said in the case Glass Co. v. Dewey, 16 Mass. 94 of Clancey v. Onondaga Salt Co., 62 (1819); s. c. 8 Am. Dec. 128. Barb. (H. T.) 395 (1862), that a cor- a Ormsby v. Vermont Copper Min- poration formed under a generallaw ing Co., 65 Barb! (N. T.) 360 (1873); for a legitimate purpose, does not reversed on another point, 56 N. Y. lose its corporate capacity by a per- 623; Boston Glass Manuf. v. Lang- version of abuse of its legitimate don, 41 Mass. (24 Pick.) 49 (1834); power. s. c. 35 Am. Dec. 292. 2 Persse & Bl-ooks Paper Works v. * People ex rel. Bishop v. Kingston Willett, 19 Abb. (N. Y.) Pr. 433 &Middleton Turnpike Co., 23 Wend. (1863); s. c. 1 Robt. (IST. Y.) 147; (ST. Y.) 193 (1840). Barclay v. Talman, 4 Edw. Ch. (IST. 5 pgopie ex rel. Bishop v. Kingston Y.) 123 (1848); See Vernon Society & MiddletonTurnpikeCo., 23 Wend. V. Hills, 6 Cow. (N. Y.) 23 (1826); (N. Y.) 193 (1840). s. c. 16 Am. Dec. 429; Bank Com- « People ex rel. Bishop v. Kingston missioners v. Bank of BufCalo, 6 cfe MiddletonTurnpikeCo., 23 Wend Paige Ch. (N. Y.) 503 (1837) ; Chester 193 (1840). GEOTJNDS OP DISSOLUTION — CHANGE OF BUSINESS. 38T poration,^ because a corporation must come up to all the substantial objects for which it was instituted.^ A corpora- tion is made a political body on the implied condition that it shall demean itself faithfully and honestly in the use of all its franchises ; and if it depart from any one of these it is- guilty of a breach of trust.^ Sec. 162] . Same — Change of business.— Any change in thtS nature and business of a corporation from one for which it- was created, effectually destroys it for all the purposes for which it was formed ; it is no longer the same corporatiou and may be dissolved.* And a corporation is dissolved by suffering any act destructive of the object for which it was created,* because the suffering of such acts is equivalent to a, surrender of its rights ; ® but where a corporation is formed for the construction of a particular work, such as a railroad or a canal, the same to be completed within a definite time, the corporation is not dissolved by failure to accomplish the work within the time specified in the absence of any judg- ment declaring a forfeiture.^ Sec. 162k. Same— Death of members.- A corporation may be dissolved within the period prescribed by its charter, because of a loss of all of its members, or of an integral part, by reason of which its functions cannot be restored.^ 1 Barclay v. Talman, 4 Edw. Ch. s. c. 11 Abb. (JST. T.) Pr. 204; 20 (N. T.) 123(1843); People v. Bristol How. (ST. Y.) Pr. 199; 21 How. & R. Tump. Co., 23 Wend (N. T.) (K. T.) Pr. 193. 222, 235 (1840). See Slee v. Bloom, * See Briggs v. Penniman, 8 Cow. 5 John Ch. (S. T.) 380 (1821); (N. T.) 387 (1826) ; s. c. 18 Am. Dec. People V. Bristol & Eensslaerville 454. Turnpike Co., 23Wend. (N. T.) 222, « Slee v. Bloom, 19 Johns. (N. T.) 235 (1840). 456 (1822); s. c. 10 Am. Dec. 273. ^ People V. Bristol f. T.) School v. Zanesville Canal & Manuf. 222, 235 (1840). Co., 9 Ohio, 203 (1839); s. c. 34 Am.. ^ People V. Bristol & Rensslaer- Dec. 436. ville Turnpike Co. , 23 Wend. (N. T. ) « state v. Real Estate Bank, 5 Ark. 222, 235 (1840); Chesapeak & Ohio 595 (1843); s. c. 41 Am. Dec. 109; Canal Co. v. Baltimore & O. R. Co., Penobscot Boom Corp. v. Lamson, 4 Gill & J. (Md.) 1, 107, 121 (1832). 16 Me. 224 (1839); s. c. 33 Am. Deo. * Abbot V. American Hard Rubber 656; Trustees of Mclntire Poor Co., 33 Barb. (N. Y.) 578 (1861); School v. Zanesville Canal & Manuf. 388 GEOUNDS OF DISSOLUTION — FAILURE TO ELECT. Sec. 1621. Same— Failure to elect officers. — An intentional neglect on the part of the officers of a corporation to notify and hold the annual election for directors, as required by- statute, is such a violation of the provisions of the charter of the company as will authorize the court of chancery to appoint a receiver, and to decree a dissolution of the corpo- ration.i But a dissolution does not arise from a mere failure to continue the succession to certain offices when these offices, in fact, are exercised by officers de faoto? Thus a corporation has been held not dissolved by an omission to elect trustees for more than two years, while the members constituting an integral part of the corporation, remained in esse, but the old trustees continued in office until others were elected in their stead ; ^ because, in such a case, the officers already in office continue to be good officers after the year for which they were elected, and until after others are chosen in their stead.* If, however, such neglect to elect officers does, in any par- ticular case, end the power of the corporation to continue or resume operations, it is thought that this would be a ground for dissolution ; ^ and an election of officers, such as trustees, Co., 9 Ohio 203 (1839); s. c. 34 Am. ton, 35 ]^. Y. Super. Ct. (3 J. & S.) Dec. 486; Chicago Life Ins. Co. v. 309 (1873). Needles, 113 U. S. 585 (1884); bk. 6 gee Slee v. Bloom, 19 Johns. 28 L. ed. 1088. (N. Y.) 456 (1822); s. c. 10 Am. Dec. 1 Ward V. Sea Ins. Co., 7 Paige 273; Pearce v. Olney, 20 Conn. 544 Ch. (N. T.) 294 (1838). (1850); State v. Trustees of Vin- 2 Lehigh Bridge Co. v. Lehigh cennes University, 5 Ind. 77 (1854); Coal & Nav. Co., 4 Rawle (Pa.) 9 Boston Glass Manuf. v. Langdon, (1833); s. o. 26 Am. Dec. 111. 41 Mass. (24 Picli.) 49 (1834); s. c. s Barclay v. Talmau, 4 Edw. Ch. 35 Am. Dec. 292; Russell v. McLel- 445 (1857); People v. Waterford & S. Turnpike Co., 2 Keyes (N. Y.) 327,335 (1866) ; s. c. 3 Abb. App. Dec. (N.Y.) 580, 590; People v. Bristol & R. Turnpike Co., 23 Wend. (N. Y.) 222 (1840); People v. Kingston & M. Turnpike Road Co., 23 Wend. (N. Y.) 193 (1840); s. c. 35 Am. Dec. 551; Commonwealth v. Tenth Massachusetts Turnpike Corp., 65 Mass. (11 Cush.) 171, 173 (1853). ' People V. PhcEnix Bank, 24 Wend. (N. Y.) 431, 483 (1840); s. c. 35 Am. Dec. 634. * People V. Phoenix Bank, 24 Wend. (N. Y.) 431 (1840); s. c. 35 Am. Dec. 634. See Green v. Sey- mour, 3 Sandf. Ch. (N. Y.) 286. (1846). 410 PROCEEDING TO DECLARE FORFEITURE. subsequent acts, recognizing the existence of such corporation, a, waiver.^ Sec.l62f.^ Same— Proceedings to declare forfeited.— At common law the forfeiture of corporate franchises is enforced either by scire facias or quo warranto. It has been said that a scire facias is proper where there is a legally existing body, capable of acting, but who have been guilty of an abuse of the power intrusted to them ; for, as a delinquency is imputed to them, they ought not to be condemned unheard ; but that does not apply to the case of a non-existing body, and a quo warranto is necessary where there is a body corporate de facto, who take upon themselves to act as a body corporate, but from some defect in their constitution they cannot legally exercise the powers they assume to use.^ From this it would seem that the remedy against a corpo- ration for the misuser or nonuser of its corporate franchise is an action at law of scire facias, presented at the instance and on the behalf of the government.^ The ancient writ of quo warranto has fallen into disuse, and the modern information in the nature of a quo warranto has been substituted in its stead, not only against such bodies as assume to exercise corporate powers without any authority of law, but also against corporations having a legal existence, for the forfeiture -of their franchises.* Whether proceedings be by scire facias » People V. Manhattan Co., 9 (N. Y.) 595 (1860) ; Slee v. Bloom, 5 Wend. (N. Y.) 351 (1832); Common- John. Ch. (N. Y.) 366 (1821); State v. wealth V. Tenth Massachusetts Fourth New Hampshire Turnpike Turnpike Co., 65 Mass. (11 Cush.) Co., 15 N. H. 162 (1844); s. c. 41 171, 174 (1853). Am. Dec. 692; Attorney-General v. 2 Rex V. Pasmore, 3 T. R. 199, 244 Stevens, 1 N. J. Eq. (1 Saxt.) 369 •(1779).See Slee v. Bloom,5Johns. Ch. (1831) ; s. c. 22 Am. Dec. 529; Patrick (N. Y.) 366 (1821); Bakerv. Backus' v. Euffners, 2 Rob. (Va.) 209 (1843); Adm'r, 32 111. 79|110 (1863); Wash- s. c. 40 Am. Dec. 745. ington & B. Turnpike Co. v. State, * People v. Bank of Hudson, 6 19 Md. 239 (1862); Regents of Uni- Cow. (N. Y.) 217 (1826); People v. versity of Maryland v. Williams, 9 Washington & W. Bank. 6 Cow. Gill & J. (Md.) 365 (1838); s. c. 31 (N. Y.) 211 (1826); People v. Bank Am. Dec, 72; State v. Merchants, of Niagara, 6 Cow. (N. Y.) 196 (1826); Ins. & T. Co., 8 Humph. (Tenn.) Thompson v. People, 23 Wend. (N. 235 (1847). Y.) 538 (1840); People v. Bristol & 8 SeeMerrickv. Brainard,38Barb. R. Turnpike Co., 23 Wend. (N. T. SENT BY ATTOKNEY-GENEEAL. 411 or information in the nature of a quo warranto, they must be at the instance and on behalf of the state through its proper ofBcers, and cannot be prosecuted by a private individual, unless permitted by special statute.^ In such proceedings the corporation is, of course, a necessary party ; ^ and it has been said that instituting such proceedings is an acknowl- edgment of the legal existence of the corporation, ^ but this doctrine has been questioned, and is thought not to be sound, because it rests upon no valid reason. * Sec. 162g^. Same — Siiit by Attorney-General — Discretion of Court.— Unless required by some statute, the attorney-general need not ask leave of couj:t to institute proceedings to declare the forfeiture of corporate franchises and dissolve the corpo- ration ;^ neither would it seem to be necessary that the legis- 222(1840); Darnell V. State, 48 Ark. St. 415 (1853); Commonwealth v. 321 (1886); Danville & W. L. Plank Koad Co. V. State, 16 Ind. 456, 457 (1861); Reed v. Cumberland & O. Canal Turnpike Corp., 65 Me. 132 (1876); State v. Paterson & H. Turnpike Co., 21 N. J. L. (1 Zab.) 9, 12 (1847). 1 Denlke v. New York & R. Lime & Cement Co., 80 N. Y. 599 (1880); Slee V. Bloom, 5 Johns Ch. (N. Y.) 366 (1821); Wilmersdoerffer v. Lake Mahopac Imp. Co., 18 Hun, (N. Y.) 387 (1879); People v. North Chicago R. Co., 88 111. 537 (1878) ; Curien v. Santini, 16 La. An. 27, 29 (1861); Chesapeake & O. Canal Co. V. Baltimore & O. R. Co., 4 Gill & J. (Md.) 1, 122(1832); Rice V. National Bank, 126 Mass. 300 (1879); Folgerv. Columbian Ins. Co., 99 Mass. 267 (1868); s. c. 69 Am. Dec. 747; Commonwealth v. Union F. & M. Ins. Co., 5 Mass. 230 (1809); s. c. 4 Am. Dec. 50; State v. Pater- son & A. Turnpike Co., 21 N. J. L. (1 Zab.) 9 (1847); Western Pa. R. Co.'s Appeal, 104 Pa. St. 399 (1883); Commonwealth v. Philadelphia G. & N. R. Co., 20 Pa. St. 518 (18-53); Murphy v. Farmers' Bank, 20 Pa. Allegheny Bridge Co., 20 Pa. St. 185 (1852); Commonwealth v. Farmers' Bank, 2 Grant. Cas. (Pa.) .392 (1853); State V. Butler. 15 Lea (Tenn.) 104 (1885); State v. White's Creek Turn- pike Co., 3 Tenn. Ch. 163 (1876); Gaylord v. Fort Wayne M. & C. R. Co., 6 Biss. C. C. 286 (1875); Rex v. Corporation of Carmarthen, 2 Burr. 869 (1759); s. c. 1 W. Bl. 187. " People V. Rensselaer & S. E. Co., 15 Wend. (N. Y.) 113, 128 (1836); s. c. 30 Am. Dec. 33, 37; Smith v. State, 21 Ark. 294 (1860) ; Baker v. Backus' Adm'r, 32 111. 79 (1863); State V. Taylor, 25 Ohio St. 279 (1874). ' People V. Rensselaer & S. R. Co., 15 Wend. (N. Y.) 113, 129 (1836); s. c. 30 Am. Dec. 33, 38; State v. Commercial Bank of Manchester, 33 Miss. 474 (1857); Commercial Bank of Natchez v. State, 14 Miss. (6 Smed. & M.) 599, 614 (1846); State v. Cin- cinnati Gas Light & C. Co., 18 Ohio St. 262 (1868). * People V. Bank of Hudson, 6 Cow. (N. Y.) 217 (1826). 5 State V. St. Louis Perpetual Ins- Co., 8 Mo. 3.30 (1843); State v. Pat 412 WHEN AKD WHERE SUIT TO BE BllOUGHT. lature should have authorized, either by general or special statute, the proceedings to be brought.^ Where it is discretionary with the attorney-general to bring a suit for the forfeiture of the franchises of a corporation, he cannot be compelled by mandamus to do so ; ^ but if the attorney-general is required to obtain the leave of court before filing an information, the granting of leave rests in the sound discretion of the court.^ Sec. 162hi. — Same — When suit to be brought. — In the ab- sence of any statutory provision establishing proceedings for the forfeiture of the franchises of a corporation for nonuser, misuser, and the like, the suit must be filed within a reasonable time after the cause of forfeiture has arisen. In such cases the court is said to possess a sound discre- tion in the matter, and will not entertain the proceedings if there has been unreasonable delay after the cause of forfeiture arose.* It has been held, however, that lapse of time is no bar where the forfeiture has not been expressly or impliedly waived.^ Sec. 16211. — Same — Where to be brought. — The proceedings for the forfeiture of the franchises of a corporation must be brought in the county or state where the corporation was. created, because the courts of any other country or state have no jurisdiction to regulate and control such corporation, and terminate its civil existence.^ The judgment in proceedings for the forfeiture of the erson & H. Turnpike Co., 21 N^. J. Kellogg v. Union Co., 12 Conn. 7, 19 L. (1 Zab.) 9 (1847). See post § 163c. (1837). '■ State V. Consolidation Coal Co., ^ See State v. Pawtuxet Turnpike 46 Md. 1(1876); State v. Rio Grande Co., 8 R. I. 521 (1867); s. c. 94 Am. B. Co., 41 Tex. 217, 219 (1874); State Dec. 123. V. Southern Pac. R. Co., 24 Tex. 80 ^ Importing & Exporting Co. v. (1859). ^ Locke, .50 Ala. 332 (1873); Carey v. 2 Statev. Attorney-General, 30 La. Cincinnati & C. E. Co., 5 Iowa, 357, An. 954 (1878). 367 (1857) ; Society for the Propaga- ' People T. Xorth Chicago R. Co., tion of the Gospel v. Town of New 88 111. 537 (1878) ; Attorney-General Haven, 21 U. S. (8 Wheat. ) 464 (1823) ; V. Erie & K. R. Co., 55 Mich. 15, 21 bk. 5 L. ed. 662; People v. Society (1884). for the Propagation of the Gospel, 1 * People V. Oakland County Bank, Paine, C. C. 653, 656 (1826). 1 Doug. (Mich. ) 282, 286 (1844). See HOW FOKFEITUEE DECLAEBD. 413 franchises of a corporation is of ouster and of seizure of the franchises into the hands of the state, that is, of its dissolution.^ It is said, however, that if the corporation violates a special franchise, the state may obtain a judgment declaring that particular franchise forfeited, without dissolving the corpora- tion or depriving it of the general franchise of acting in a corporate capacity.^ Sec. 162J1. Same— How forfeiture declared. — Ordinarily a forfeiture can be declared and established only by judicial proceedings directly instituted for that purpose either by scire facias or information in the nature of a quo warranto ; ^ but where a franchise is granted by act of the legislature with a clause declaring its subject to forfeiture upon certain con- ditions of non-performance, no adjudication of a forfeiture by the courts is required, and the legislature may treat the same as forfeited.* Sec. 162k^ Same — When dissolution takes place. — A corpora- tion will not be dissolved by sale of its franchise ; nor of all the corporate property and the settlement of all its concerns, and the division of the surplus ; nor by a cessation of all cor- porate acts ; nor by any neglect of corporate duty ; nor by any abuse of corpoi'ate powers ; nor by doing acts which cause a 1 People v. Bank of Hudson, 6 (1877); New Jersey Southern E. Co. v. Cow. (N. Y.) 217 (1826); Slee v. Long Branch Com'rs, 39 jST. J. L. (10 Bloom, 5 Johns. Ch. (N. Y. ) .366, 379 Vr.) 28 (1876) ; 2 Kent. Comm. 305. (18U); People v. Kennselaer & S. K. " Brooklyn Steam Transit Co. v. Co., 15 Wend. (N. Y.) 113, 128 (1836) ; Brooklyn, 78 N. Y. 524 (1879) ; Sturges «. c. .30 Am. Dec. 33, 35; State Bank v. Vanderbilt, 73 N. Y. 384 (1878); V. State, 1 Blackf. (Ind.) 267 (182.3); In re Brooklyn W. & N. R. Co., 72 rs. o. 12 Am. Dec. 234; Statev. Penn- N. Y. 245 (1878); s. c. 75 N. Y. sylvanla & O. Canal Co., 23 Ohio St. 335; 19 Hun (N. Y.) 314; 55 How. 121, 126 (1872). (N. Y.) Pr. 14; Kennedy v. Strong, 2 Toledo & A. A. E. Co. v. John- 14 Johns. (N. Y.) 129 (1817); Oak- son, 49 Mich. 148, 151 (1882). land E. Co. v. Oakland B, & F. V. 3 Sturges V. Yanderbilt, 73 N". Y. E. Co., 45 Cal. 365 (1873); State v. 384 (1878); In re Xew York Elevated Clinton & P. H. E. Co., 4 Eob. (La.) E. Co., 70 N.Y. 327(1877); Danbury 445(1843); LaGrange & M. E. Co. & X. R. Co. V. Wilson, 22 Conn. 435 v. Eainey, 7 Coldw. (Tenn.) 420 (1853); Brufeettv. Great Western E. (1870); United States v. Grundy, 7 Co. 25 111. 353 (1861); Aurora & C. U. S. (3 Cr.) 351 (1806); bk. 2 L. ed. R. Co. V. Lawrenceburgh, 56 Ind. 80 459. 414 WHEN DISSOLUTION TAKES PLACE. forfeiture of the charter, without a judgment declaring such forfeiture. Such dissolution can take place only: 1. By an act of the legislature, where power is reserved for that purpose ; 2. By a surrender, which is accepted^ of 'the charter ; 3. By a loss of all its members, or of an integral part thereof, so that the exercise of corporate functions cannot be restored; and 4. By forfeiture, which must be declared by judgment of a court.i Sec. 15211. Same — Judgment of forfeiture necessary. — A cor- poration is not ipso facto dissolved, either by the omission or commission of acts constituting a cause of forfeiture, and its franchises remain in full force until the charter is cancelled by an act of the legislature, or a forfeiture declared by a judgment or decree of a court of competent jurisdiction, in a direct proceeding for that purpose, instituted by the state against the corporation.^ And the cause of forfeiture cannot be taken advantage of or enforced against a corporation col- 1 Trustees of Vernon Society v. (N. Y.) 110(1874); Kincaid v. Dwi- Hills, 6 Cow. (N. Y.) 2,3 (1826) ; s. c. nelle, 37 K. Y. Super. Ct. (5 J. & S.> 16 Am. Dec. 429; Allen v. New 326 (1874). Jersey S. R. Co., 49 How. (X. Y.) ^ Trustees of Vernon Society v. Pr. 17 (1875) ; Slee v. Bloom, 5 Johns. Hills, 6 Cow. (N. Y. ) 26 (1826) ; s. o. Ch. (N. Y.) 367 (1821); Wilde v. 16 Am. Dec. 431 ; Allen v. New Jersey- Jenkins, 4 Paige Ch. (N. Y.) 481 S. R. Co., 49 How. (N. Y.) Pr. 17 (1834); Bank of Niagara V. Johnson, (1875); Lake Ontario Nat. Bank v. 8 Wend. (N. Y.) 645 (1832); Penob- Onondaga County Bank, 7 Hun scot Boom Corporation v. Lamson, (N. Y.) 549 (1876); Slee v. Bloom, 5 16 Me. 224 (1839) ; s. c. 33 Am. Dec. Johns. Ch. (N. Y.) 366 (1821) ; Persse ()."i6; Chesapeake & O. Canal Co. v. & Brooks Paper Co. v. Willett, 1 Baltimore & O. R. Co., 4 Gill Robt. (N. Y.) 147 (18G3); Importing- & J. (Md.) 121 (1832); Revere v. & Exporting Co. of Ga. v. Locke, 50 Boston Copper ^o., 32 Mass (15 Ala. 334 (1873); State v. Real Estate Pick.) 351 (1834); Russell v. Mc- Bant, 5 Ark. 595 (1844); s. c. 41 Leland 31 Mass. (14 Pick.) 63 (1833); Am. Dec. 117; Penobscot Boom Peter V. Kendal, 6 Barn. & Cress. 703 Corp.- v. Lamson, 16 Me. 224 (1830); (1827);2Kent. Comm. 312;SeeBradt s. c. 33 Am. Dee. 660; Hestonville v.- Benedict, 17 N. Y. 99 (1858) ; New M. & F. P. R. Co. v. Philadelphia, York Marbled Iron Works v. Smith, 89 Pa. St. 218 (1879); Strong v. Mc- 4 Duer (N. Y.) 362 (1855); Caiy v. Cagg,55 Wis. 628 (1882). See Kincaid Schoharie Valley Mach. Co., 2 Hun v. Dwindle, 59 N. Y. 548, o.:2 (1875). JUDGMENT OP FOKFBITUBE. 415> laterally or incidentally or in any other mode than by a direct proceeding for that purpose.^ Acts which are improper do not of themselves, work a dis- solution of the corporation ; ^ neither does ceasing to do business; 3 nor a lease and transfer of the corporate pro- perty ; * nor nonuser ^ until after a judgment declaring the forfeiture. The omission to elect officers, the sale of its property and effects, and its subsequent failure to transact business, do not work a dissolution ; there must be a surrender of its charter to, and its acceptance by the state, or a judgment of dissolu- tion by a court of competent jurisdiction. ® A corporation which has been enjoined from the exercise of its corporate franchises and deprived of its property, and has ceased to exist for all practical purposes, is not dissolved till there is a decree of court to that effect, and until this time judgment creditors may sue it, and its stockholders remain liable as such.'' A corporation by non-user and the suspension of its ordinary business, or by continued insolvency, or the non- payment of its notes and other evidences of debts, for one whole year, does not become ipso facto dissolved, but con- tinues to exist until its dissolution is judicially declared by a decree of the court or action of the legislature.® Although a corporation is deemed to have surrendered its charter in consequence of non-user, the corporation is not actually dissolved before proceedings have been instituted either at law or in equity, to have such dissolution judicially declared, and a judgment recovered against such incorpora- tion can be enforced ; and the institution of such proceed- ^ See ante, § 162q. ^ Allen v. New Jersey South K. Co 2 Ormsby v. Vermont Copper Mm- 49 How. (N. T.) Pr. 14 (187.5). ing Co., 65 Barb. (N. T.) 360 (1873). ^ Kincaid v. Dwinelle, 59 X. T. ' Gary V. Scbobarie Valley Machine 548(187.5). See Sanborn v. Lefferts, Co., 2 Hmi, (S. Y.) 110 (1874). 58 N. Y. 179 (1874). * See Troy & R. R. Co. t. Kerr, 17 = Mickles v. Rochester City Bank, Barb. (N. Y.) 581 (1854). 11 Paige Ch. (N. Y.) 118 (1844). ^ Nimmons v. Tappan, 2 Sween, (N. Y.) 652 (1870). 416 BY WHOM SUIT TO BE BROUGHT. ings, and a sale of the corporate property upon an execution issued on such judgment will be valid and effectual to trans- fer the title of such property to the purchaser.^ Sec. 163. Same— By whom to be brought.— An action, specified in the last section, may be maintained by the attorney-general, in the name and in behalf of the people, and whenever a creditor or stockholder of any corporation submits to the attorney-general a written statement of facts, verified by oath, show- ing grounds for an action under the provisions of the last section, and the attorney-general omits for sixty days after this submission, to commence an action specified in the last section, then, and not otherwise, such creditor or stockholder may apply to the proper court for leave to commence such an action, and on obtaining leave may maintain the same accordingly.^ Sec. 163a. Same — Who may apply. — Unless there are special enabling provisions by statute, a forfeiture of the franchises of a corporation can only be enforced by the sovereign power to which the corporation owes its life, in some proceeding instituted in behalf of the sovereign. ^ Under the New York statute an insolvent corporation may be dissolved and 1 Micklesv. Rochester City Bank, Daly (N. T.) 455 (1876); Attorney- 11 Paige, Ch. (N. T.) 118 (1844). General v. American Life Ins. Co., 2 N. Y. Code Civ. Proc. § 1786, as 56 How. (N. Y.) Pr. 160 (1878); At- amended by L. 1880 c. 301. Before the torney-General v. Atlantic Mut. Life enactment of this section of the Ins. Co., 53 How. (N. Y.) Pr. 227 Code, the decisions were not in har- 300 (1877); Attorney-General v. Con- mony as to whether the Revised tinental Life Ins. Co., 53 How CN. Statutes, and the acts passed since Y.) Pr. 16 (1877); Medbury v. Roch- then, relating t^ the subject, were to ester Frear Stone Co., 19 Hun (N. be construed as confining the right Y.) 498 (1880) ; Wilmersdoerffer v! to bring an action to the attorney- Lake Mahopac Imp. Co., 18 Hun general. See Bliven v. Peru Steel & (N. Y.) 387 (1879). Iron Works, 9 Abb. (N. Y.) N. C. » Denike v. New York & R. L. & 205 (1881) ; Kittridge v. Kellogg, 8 C. Co., 80 N. Y. 599 (1880). See Abb. (N. Y.) N. C. 168 (1880); onte, § 162q, Masters v. Electric Life Ins. Co., 6 clij:ditohs at lauge — ^leave to site. 417 its affairs wound up, at the instance of a single stockholder or creditor.^ Such creditor or stockholder, who has an interest in closing up the affairs of the corporation, may file a bill in chancery against the corporation, to have its dissolu- tion judicially declared, and to have its concerns closed up, and the property distributed under the direction of the court, where the corporation has remained insolvent for a year, or has suspended its ordinary business, or has neglected to pay undisputed evidences of debt for a year.^ Sec. 163b. Same— Creditors at Large.— It was formerly held that a creditor-at-large, of a corporation, could maintain an -action to have it dissolved on the ground of insolvency, and to compel its trustees and officers to make good the losses which have been sustained by reason of their negligence and mis- management; ^ but it is said in Dambman v. The Empire Mill,* that a creditor-at-large cannot apply by petition for a receiver of the estate of an insolvent corporation. Sec. 163c. Same— Leave to Sue. -In the absence of statutory requirements the attorney-general need not ask leave of the court to institute proceedings to declare the forfeiture of cor- porate franchises ; ^ and in an action by a stockholder for the dissolution of a corporation the leave to sue, required by the code,® sufficiently appears from allegations showing an application to the attorney-general, requesting him to com- mence an action in behalf of the people to dissolve the cor- poration; that more than sixty days have clasped since a statement of facts, verified on oath, wa.= submitted to him, and that he has omitted for more than sixty days after such submission to commence the action, and that upon his refusal to proceed, the plaintiffs applied to the Supreme Court 1 Hastens V. Electric Life Ins. Co., Co., 11 Hun (N. Y.) 282 (1877); « Daly (N. T.) 455 (1876). Byrne v. ?}^ew Tork B. & C. Co., 16 2 Conro V. Gray, 4 How. (N. T.) ]Sr. T. Week Dig. 139 (1882). Pr. 166 (1849); Mickles v. Rochester ' 12 Barb. (N. Y.) 341 (1851). City Bank, 11 Paige Ch. (N. Y.) 118 ^ State v. St. Louis Perpetual Ins. (1884). Co., 8 Mo. 330 (1843) ; State v. Pater- 3 Colev. Knickerbocker L. Ins.Co. son & H. T. Co., 2-1 N. J. L. (1 Zab.) 23 Hun (N. Y.) 255 (1880). Appeal 9,10(1847). See ante, § 162g. dismissed by consent, 91 N. Y. 641; « N. Y. Code Civ. Proc. § 1786; Belknap v. North America L. Ins. ante § 163. , 27 418 PARTIES TO ACTION — PLEADINGS. special term for leave to bring the action, and that such leave was duly granted.^ 163d. Same-Parties to action— Lessee.— In proceedings for dissolution and forfeiture of the franchises of a corporation, one to whom the corporation has leased property for the term of its existence, has a right to be made a party and a right to contest the forfeiture ; ^ but it has been said that where a corporation holds a franchise which is entire in its character, such as to improve the navigation of a river, inter- mediate between certain designated points, and has power to lease a portion of the works, the lessee of such portion will hold subject to the risk of the forfeiture of the entire franchise, if the lessor should be guilty of default in respect to the improvement of any portion of the stream.^ Sec. I63e. Same— Pleadings.— An action may be maintained and a receiver appointed on a complaint which sets out that defendant is a manufacturing corporation organized under the laws of this state ; that plaintiffs are two of the trustees and stockholders ; that three of the defendants are the other trus- tees ; that the corporation has been insolvent for over a year ; the plaintiffs are pecuniarily responsible, while the other trus- tees are not ; that they continue the business, though judgments had been recovered against the corporation and executions returned unsatisfied ; that an action has been begun against one of the plaintiffs, to charge him personally with the debts of the corporation, and praying for a dissolution of the corpora- tion, and for an injunction and a receiver pendente lite.* Sec. 164. Same— Temporary Injunction.— In an action brought as prescribed in this article, the court may, upon proof of the facts authorizing the action to be maintained, grant an injunction order, restraining the corporation, audits trustees, directors, managers, 1 Swords V. Northern Light Oil s People v. Kankakee River Im- Co., 17 Abb. (N. Y.) N. C. 115 (1885). provement Co., 103 111. 491 (1882). i* People V.Albany &V. T. ROD., ■» Medbury v. Rochester Frear 7*7 N. Y. 232 (1879); reversing 15 Stone Co. 19 Hun (N. Y.) 498 (1880). Hun (N. Y.) 126. TEMPORARY INJUNCTION. 419 and other officers, from collecting or receiving any debt demand, and from paying out, in any way transferring or delivering to any person, any money, property, or effects of the corporation, during the pendency of the action ; except by express permis- sion of the court. Where the action is brought to procure the dissolution of the corporation, the in- junction may also restrain the corporation, and its trustees, directors, managers and other officers, from exercising any of its corporate rights, privileges, or franchises, during the pendency of the action ; ex- cept by express permission of the court. The pro- visions of title second of chapter seventh of this act, relating to the granting, vacating, or, modifying of an injunction order, apply to an injunction order, granted as prescribed in this section ; except that it can be granted only by the court.^ Sec. 164a. Injunction— Who may grant-— In an action insti- tuted to procure the forfeiture of corporate franchises, on the dissolution of a corporation, the court, but not the judge thereof, may grant an injunction, and on final injunction appoint a receiver.^ Sec. 164b. Same— "When granted.— An injunction may be granted to restrain an ofScer from doing any particular wrongful or fraudulent acts ^ affecting private rights.* Thus an injunction may be granted to restrain directors from issuing bonds as a device to increase the capital which they 1 N. T. Code Civ. Proc. § 1787. * People v. Albany & S. E. Co., 7 2 See N. T. CodeCiv. Proc. §§ 1788, Abb. (N. T. ) Pr. N. S. 265 (1869) ; s. 1802; post, §§ 165, 180. c. 1 Lans. (N. T.) 308; 55 Barb. 8 Fisk V. Chicago R. I & P. E. (N. Y.) 344; 38 How. (N. Y.) Pr. Co., 53 Barb. (N. Y.) 513 (1868) ; s. 228; modifying 5 Lans. (N. Y.) 25; c. 4 Abb. (N. Y.) Pr. N. S. 378; 36 modified 57 N. Y. 161. How. (N. Y.) Pr. 20; Howe v. Deuel, 43 Barb. (N. Y.) 504 (1865). 420 WHEN GEANTBD. have converted ; ^ to restrain the transfer of stock of an insolvent mining corporation;^ to restrain a railroad from removing its rails and abandoning its franchise ; ^ to restrain specific acts of the directors,* and to restrain the sale of the entire corporate property.^ But an injunction will not be granted to restrain an officer from performing the general and ordinary duties of his office,® nor against the directors to enjoin the general business of the corporation.^ Thus an junction has been refused against the president of a savings bank, where there has been an improper investment of the funds, but no further misappropriation and no violation of plaintiff's rights threatened,* and simple forfeiture of fran- chise is no ground for an injunction.® The court, independently of these special statutory powers, may, on the application of a stockholder charging fraud against directors or trustees, have an injunction against doing particular acts, but not one enjoining the general business of the corporation. 1* But an injunction cannot be granted re- straining creditors from enforcing demands, at the same time with an order to show cause why a dissolution should not be had." Where, in such a case, the creditors of the corporation did not appear or in any way waive their right to be served with 1 Belmont v. Erie E. Co., 52 Barb. ^ People v. Albany (1883). Pr. 391 (1878); 15 Hun (N. Y.) 84 j ' People T. Globe Ins. Co., 57 How. affid'd 77 N. T. 337. (K. Y.) Pr. 481 (1879). As to power » l 1883, c. 378, § 7; 4 N. Y. E. of Special Term to vacate appoint- S., 8th ed., p. 2676. ment of receiver of an Insolvent life * Eddy v. Co-Operatlve Dress insurance company, and return its Assoc, 3 N. Y. Civ. Proc. Eep. 434 assets and allow it to resume business, ( 1883). DUTIES AND POWERS OP EECEIVEE. 429 Sec. 1651. Same — Duties and po-wers of receiver. — The re- ceiver of a corporation is vested with all the rights of action which the company had when he was appointed. Thus he may sue for a tort committed before his appointment ; ^ may repudiatfe an illegally executed contract of the corporation and reclaim the property ; ''■ may set aside illegal or fraudulent provisions and recover funds misappropriated ; ^ must col- lect deposit notes where they are the capital of the incorpo- ration, unless excused by the court;* may maintain trover for the conversion of the personal property of the corporation before his appointment ; ^ may enforce the common law lia- bility of the trustee of the corporation for misappropriation of the funds ; ® may apply for a warrant to bring up for examin- ation a person who is indebted to the corporation or who has property belonging to it in his custody ; ^ may recover unpaid subscriptions ; * may maintain an action to recover dividends wrongfully paid ; may, under the direction of the court, con- tinue a suit commenced by the insolvent company, either in his own name or in the name of the original party ; ^ and he may be authorized to compromise or submit to arbitration any and all disputed claims ; and the court will give him a general power to compromise .^^ But the receiver cannot 1 Gillet V. Fairchild, 4 Den. (N.T.) ^ VanDyck v. MoQuade, 57 How 80 (184'7) ; Brouwer v. Hill, 1 Sandf. (Jf. Y.) Pr. 62 (1879). (N. Y.) 629 (1848). See, Hyde v. ' SeeposS, § 165o. Lynde, 4 N. Y. 387, 392 (1850); Lea^ s Van Cott v. Van Brunt, 2 Abb. vitt V. Palmer, 3 N. Y. 19 (1849); s. (N. Y.) N. C. 288 (1877). See, Pentz c. 51 Am. Dec. 333; Hoytv. Thomp- v. Hawley, 1 Barb. Ch. (N. Y.) 122 son, 3 Sandf. (N. Y.) 416 (1850); (1845); Phcenix Warehousing Co. v. rev'd5 N. Y. 320. Badger, 6 Hun (IST. Y.) 293 (1875); 2 Talmage v. Pell, 7 N. Y. 328 affd 67N. Y. 294; Euggles v. Brock <1852). 6 Hun (N. Y.) 164(1875); Nathanv! 3 Attorney-General v. Guardian Whitlock, 9 Paige Ch. (K. Y.) 152 M. L. Ins. Co., 77 N. Y. 272 (1879). (1841); Afe'd.-S Edw. Ch. (N. Y.) * Van Buren v. Chenango Co. 215. Mutual Ins. Co., 12 Barb. (N. Y.) » Albany City Ins. Co. v. Van 671 (1852). See, Devendorf v. Vranken, 42 How. (N. Y.) Pr. 281 Beardsley, 23 Barb. (N. Y.) 656 (1872) ; Talmage v. Pell, 9 Paige Ch. <1857). (N. Y.) 410 (1842). s Gillet V. Fairchild, 4 Den. (N.Y.) i" Matter of Croton Ins. Co., 3 80 (1847). Barb. Ch. (N. Y.) 642 (1847. 430 RECEIVERS — DUTIES AND POWERS OF. impeach the lawful acts of the corporation,! and he has no autlioi'ity without the direction or consent of the court to- invest the moneys in his hands ; in the absence of directions it is his duty simply to keep and protect the trust fund, and hold it ready for distribution. Where, however, a receiver with- out authority from the court, but acting in entire good faith, placed the fund in the hands of brokers to be loaned on call, and charged himself with the amounts received for interest, it appearing that no part of the fund was lost, and that the parties interested therein were not injured, but were probably benefited, held, that an order charging the receiver with interest beyond the amount received was error.^ By the act of 1880,8 § 42 of 3 Revised Statutes, chapter 8, title 4, is made applicable to receivers appointed under the code.* That section reads as follows : " Such receiver shall possess all the power and authority conferred, and be subject to all the obligations and duties imposed, in article three of this title, upon receivers appointed in case of the voluntary dissolution of a corporation. It shall be his duty to keep an account of all moneys received by him, and on the first days of January, April, July and October, in each and every year, to make and file a written statement, verified by his oath, that such statement is correct and true, showing the amount of money received by such receiver, his agents or attorneys, the amount he has a right to retain under the provisions of this title, and the items for which he claims to retain the same, and the distributive share due to each person interested therein. He shall pay such distributive shares to the person or persons entitled thei"eto, on demand, at any time after such statement. Such account, statement, and all the books and papers of the corporation in the hands of such receiver, shall at all reason- able times be onen for the inspection of all persons having an ' Hyde v. Lynde, 4 N. T. 387 ' L. 1880, c. 245, the repealing act (1850). of that year. 2 Attorney-General V. North Amer- ' IST. T. Code Civ. Pro., § 1788; lean L. Ins. Co. 89 N. T. 94 (1882) ante, § 165. modifymg 26 Hun (N. Y.) 294. COLLECTION OP UNPAID SUBSCRIPTIONS. 431 interest therein. And in case of neglect or refusal to comply •with either of the above requirements, or any duty imposed upon him by this title, the supreme court, at either a general or special term, shall, on the application of the party ag- grieved, unless such neglect or refusal shall be satisfactorily explained to the court, forthwith remove such receiver, aikd appoint some suitable person as receiver in his place. Such removal shall not vitiate or annul any legal proceedings had by such receiver ; but such proceedings shall be continued by such successor as if no removal had been made. Such re- ceiver shall also be liable to pay to the party interested, interest at the rate of ten per cent, per annum on all moneys due to such party and retained by him more than one day after such demand made as aforesaid. Sec. 165111. Same — Unpaid subscriptions — Collection of. — It is the duty of a receiver to require the stockholders to pay in unpaid balances of their subscriptions to the capital stock, where in his judgment such amounts will be needed ; ^ and stockholders who have paid for their stock have the right to require that the receiver collect of those Avho have not paid.^ In a receiver's action to recover unpaid subscriptions to stock, one who has acted as director is estopped from deny- ing the existence of the corporation or the validity of his subscription.^ The provision authorizing the receiver to recover any sum remaining due upon any share of stock, is a cumulative remedy. And the rule is the same, whether the stock be held by an original stockholder or by an assignee.* 1 Pentz V. Hawley, 1 Barb. Ch. (1875); afe'dOTN. Y. 294. SeeN.T. (N. T.) 122 (1845). See, Van Cott Code Civ. Proc, § 1794. V. Van Brunt, 2 Abb. (N. T.) N. 0. * Mann v. Currie, 2 Barb. (N. T.) 283(1877). 294 (1848); Osgood v. Laytin, 48 2 Nathan V. Whitlock, 9 Paige Ch. Barb. (N. Y.) 463 (1867); aff'd 37 (N. Y.) 152(1841); aff'd 3 Edw. Ch. How. (N. Y.) Pr. 63; 3 Keyes (N. Y.) 215. (N. Y.) 521; 5 Abb. (N. Y.) Pr. N. 8 Buggies V. Brock, 6 Hun (N. Y.) S. 1 ; 3 Trans. Abb. App. Dec. 164 (1875) ; Phoenix "Warehousing (N. Y.) 124. Co. V. Badges, 6 Hun (X. Y.) 293 432 EXAMINATION OF DEBTOR. Sec. 16Sn. Same^ — Dividends ■wrongfully paid — Action to re- cover.— The receiver of an insolvent corporation may main- tain an action to recover dividends which have been wrong- fully or illegally declared and paid, and in such an action the creditors of the company may be made defendants to prevent multiplicity of suits by them for the same remedy.^ Sec. 165o. Same— Examination of debtor.— The receiver of a corporation may apply to the court for a warrant to bring up for examination any person who is indebted to the corpora- tion, or who has property belonging to it in his custod\- ; ^ and where an application is made by the receiver of an insol- vent corporation to an ofBcer for a warrant to bring a debtor before such officer for examination pursuant to statute, the petition for that purpose should state the fact upon which the application is founded positively and not in the alternative.^ The jurisdiction of the court to entertain a proceeding of this kind does not depend upon the truth of the facts alleged in the petition ; if the petition alleges sufficient facts, and the court is called upon to decide whether they are established, its determination, whether rightful or not, does not affect its jurisdiction.* In the case of Noble v. Halliday,^ under a statute providing that wherever a I'eceiver of an insolvent corporation " shall show by his own oath or other competent proof " that anj"- per- son is indebted to the corporation, or has property of the cor- poration in his custody or possession, the officer to whom the application is made, shall issue a warrant to bring such per- son before him for examination, it was held that it is sufficient for the receiver who applies for a warrant to swear to the facts on information and belief ; and that under such statute a person having in his custody as administrator of the deceased, effects of the corporation, such administrator will be liable to be proceeded against, and where the sworn petition 1 Osgood V. Laytin, 5 Abb. (N. Y.) ^ Halliday v. Noble, 1 Barb. (N. Pr. N. S. 1 (1867); s. c. 3 Keyes Y.) 137 (1847). (ISr. Y.) 521; 37 How. (N. Y.) Pr. 63; * Whittlesey v. Frantz, 74 N. T. aff'd 48 Barb. (N. Y.) 463. 456 (1878). 2 Noble V. Halliday, 1 N. Y. 330 ^ i x. Y. 330 (1848). (1848); rev. 1 Barb. (N. Y.) 137. SALE OP PKOPERTY — COMPENSATION. 433 on which thfe warrant was granted stated that such person had property of the corporation in his custody, either indi- vidually or as administrator, was held good. Sec. 165p. Same — Sale of property. — A court of equity will protect the interests of the general creditors and stockholders of an insolvent corporation, if it can be done without injury to judgment creditors having liens on its property, by an immediate sale thereof, and where it appears that the quicker a sale of the property can be made the more it will bring, the property should be sold, and the fund resulting from such a sale substituted for the property itself.^ And the supreme court has power to order a sale of the property of a corporation by the receiver thereof appointed in an action by a stockholder for a receiver on the ground that no officer remained qualified to take possession of the property of the corporation, and again appointed in an action by a judgment creditor for the sequestration of such property. Independent of any statute, a court of equity has inherent power to direct such a disposition of the fund as it shall deem wisest and best for the interests of all concerned. But under sections 1788 and 1789 the power is clear, for although it may be fairly argued that the statute does not in terms apply to the stockholder's action, it certainly does apply to the act of sequestration.^ But where a receiver, appointed in an action against a corporation, fraudulently obtains an order for a sale of a debt due the corporation, an equitable action at the suit of the •creditor will lie, to vacate the order, and set aside the sale.^ Sec. 165q. Same— Compensation.— Every receiver of an in- solvent corporation is entitled to receive as compensation for his services as such receiver five per centum for the first 1100,000 received and paid out, and two and one-half per centum on all sums received and paid out in excess of 1,000; but no receiver shall in any case receive from ' Smith T. Danzig, 3 N. T. Civ. » Hackley v. Draper, 60 N. Y. 88 Proc. Rep. 127 (1883). (1875); aff'g 2 Him (N. Y.) 523; 4 » Smith V. Danzig, 3 N. T. Civ. T. & C. (N. Y.) 614. Proc. Rep. 127 (1883). 28 434 ADDITIONAL POWERS OP TEMPOKARY KECEIVEKS. such percentage or otherwise, for his services for any one year, a greater sum or compensation than $12,000, nor for any period less than one year more than at the rate of fl2,000 per year, provided that where more than one receiver shall be appointed the compensation here provided shall be divided between such receivers.^ Sec. 166. Same— Additional Powers and Duties may be Conferred upon Temporary Receiver.— A temporary- receiver, appointed as prescribed in section one hun- dred and sixty-five is, in all respects, subject to the control of the court. In addition to the powers con- ferred upon him, by the provisions of said section, the court may, by the order or interlocutory judg- ment appointing him, or by an order subsequently- made in the action, or by the final judgment, confer upon him the powers and authority, and subject him to the duties and liabilities, of a permanent receiver, or so much thereof as it thinks proper ; except that he shall not make any distribution among the creditors or stockholders, before final judgment, unless he is specially directed so to do by the court.2 ' L. 1883 c. 378, §2, as amended 140 (1885); Morrison v. Menhaden by L. 1886, ^. 275; 4N. Y. R. S., 8th Co., 37 Hun (N. T.) 522, 523 (1885); ed., 2675. United States Trust Co. United States Trust Co. v. New T. New York W. S. & B. K. Co., 101 York W, S. & B. R. Co., 35 Hun N.Y. 478 (1886); People ex rel. New- (N. Y.) 341, 342 (1885); Matter of comb V. McCall, 94 N. Y. 587 (1884); Attorney-General v. Continental L. Matter of Attorney-General V. Guard- Ins. Co., 32 Hun (N. Y.) 223 (1884)- ian L. Ins. Co. ,^3 N. Y. 631 (1883); Whitney v. New York & A. R. Co.,' People V. Brooklyn F. & C. I. R. 32 Hun (N. Y.) 164,171 (1884); Mat^ Co., 89 N. Y. 75, 94 (1882); People ter »f Commonwealth F. Ins. Co., T. McCall, 65 How. (N. Y.) Pr. 442 32 Hun (N. Y.) 78 (1884); Matter of (1883) ; Moore v. Taylor, 40 Hun Security L. Ins. & Annuity Co. 31 (N. Y.) 56, 58 (1886) ; People v. Hun (N. Y.) 36 (1883) ; Matter of Mutual Bon. Assoc. 39 Hun, (N. Y.) Fees of Clerk of City Court, 25 Hun 49, 50 (1886); Greason v. Goodwillie (N. Y.) 593, 594 (1881). Wyman Co., 38 Hun (N. Y.) 138, = N. Y. Code Civ. Proc, § 1789. POWERS AKD DUTIES OP PBKMANENT EECEIVEES -ISo^ Sec, 167. Same— Powers and Duties of Permanent Receivers.— Such receiver shall possess all the power and authority conferred, and be subject to all the- obligations and duties imposed, in article three of this title upon receivers appointed in case of the voluntary dissolution of a corporation.^ It shall be^ his duty to. keep an account of all moneys received^ by him, and on the first days of January, Aprill, July and October, in each and every year, to make and file a written statement, verified hj his oath that such statement is correct and true, showing the amount of money received by such receiver, his agents or attorneys, the amount he has a right to retain under the provisions of this title, and tha items for which he claims to retain the same, and the distributive share due each person interested therein. He shall pay such distributive share to the person or persons entitled thereto, on demand,, at any time after such statement. Such account, statement, and all the books and papers of the cor- poration in the hands of such receiver, shall at all reasonable times be open for the inspection of all persons having an interest therein. And in case of neglect or refusal to comply with either of the above requirements, or any duty imposed upon him by this title, the supreme court, at either a general or special term, shall, on the application of the party aggrieved, unless such neglect or refusal shall be satisfactorily explained to the court, forthwith remove such receiver, and appoint some suitable person as receiver in his place. Such removal shall not vitiate or annul any legal proceedings had by such receiver ; but such proceedings shall be con- 1 See ante, §§ 140, 145. 436 MAKING STOCKHOIiDEES PARTIES. tinued by such successor as if no removal had been xaade. Such receiver shall also be liable to pay to the party interested, interest at the rate of ten per cent, per annum on all moneys due to such party and retained by him more than one day after such demand made as aforesaid. ^ Sec. 167a. Same — Title and Possession of. — The permanent receiver, unless his powers are restricted and controlled by order of the court, is absolutely vested with all the property and effects of the corporation, and he has full power to sell and dispose of the whole at his discretion, and to distribute the proceeds among the stockholders, after paying the debts owing by the company.^ Sec. 168. Same— Making Stockholders, etc., Parties.— Where the action is brought by a creditor of a cor- poration, and the stockholders, directors, trustees, or other oflScers, or any of them, are made liable by law, in any event or contingency, for the payment of his debt, the persons so made liable may be made parties defendant, by the original or by a supple- mental complaint ; and their liability may be de- clared and enforced by the judgment in the action.^ Sec. 168a. Same — Bringing in stockholders — Voluntary ap- pearance—Effect of.— In the case of People v. Hydrostatic Paper Co.,* an action was instituted in behalf of the state by the attorney-general, to procure the dissolution of the defendant, a manufacturing corporation. After the entry of judgment, terminating its corporate existence and appointing a receiver, by virtue of a written stipulation between him and two stock- 1 4N. T. K. S., 8th. ed., p. 2672, ' Verplanck v. Mercantile Ins. Co. § 42, as amended by L. 1858, c. 348, 2 Paige Oh. (N. Y.) 438 (1831). See and governed by the repealing act of ante, § 164d. 1880, c. 245, which declares that the ' N. Y. Code Civ. Proc, § 1790. section is " applicable to a permanent See Kincaid v. Dwinelle, 59 N. Y. receiver appointed as prescribed in 548 (1875). § 1788 of the Code of CivU Pro- * 88 N. Y. 623 (1882). cedure." SEPARATE ACTION AGAINST STOCKHOLDEKS. 437 holders, who he claimed had in their possession assets belong- ing to the corporation, and in accordance with the statute, the matter was sent to a referee, who reported that said stockholders had such assets, in their hands, which, so far as was necessary to pay debts and expenses, and pro- duce equality of final distribution, they had no right to re- tain ; no exceptions were filed in the report ; the receiver, instead of entering final judgment thereon, made up his account for presentation to the court, and filed a petition in this action, reporting therein the precise amount necessary to be restored by said stockholders, and praying that said stock- holders be adjudged to pay. A copy of the petition, with notice of application to the court thereon, was served on said stockholders who appeared at special term, and also before a referee appointed to ascertain the facts, and litigated the cor- rectness of the receiver's accounts and the amount of their liability, without questioning the right of the referee to deter- mine the amount of assets they should restore. On the coming in of the report judgment was entered therein against them for the amount so ascertained, and the court held, that although such judgment was beyond the legitimate and regular purposes of the action, yet said stockholders might have been brought in by a supplemental complaint and by their volun- tary appearance they rendered this unnecessary and became parties, the court had power to make a final determination of the question, and having had full opportunity to be heard, they could not now complain. Sec. 169. Same— "When Separate Action may be brought against Stockholders, etc.— Where the stockholders, directors, trustees, or other officers of a corporation, who are made liable, in any event or contingency, for the payment of a debt, are not made parties de- fendant as prescribed in the last section,^ the plaintiff in the action may maintain a separate action against them, to procure a judgment, declaring, apportion- ing', and enforcing their liability,^ 1 Supra, § 168. See Kincald v. Dwinelle, 59 N. T. 2 N. Y. Code Civ. Proc, § 1791. 548 (1875). 438 ASCERTAINING DEPENDANT'S LIABILITY. Sec. 170. Same— Proceedings in Action— Ascertaining- Defendants' Liability.— In an action, brought as pre- scribed in either of the last two sections, ^ the court must, when it is necessary, cause an account to be taken of the property and of the debts of the cor- poration, and thereupon the defendants' liability must be apportioned accordingly ; but, if it affirm- atively appears, that the corporation is insolvent, and has no property to satisfy its creditors, the court may, without taking such an account, ascer. tain and determine the amount of each defendant's liability, and enforce the same accordingly.^ Sec. 171. Same— Judgment— Distribution of Corporate Property.— A final judgment in an action, brought against a corporation, as prescribed in this article, either separately or in conjunction with its stock- holders, directors, trustees, or other officers, must provide for a just and fair distribution of the prop- erty of the corporation, and of the proceeds thereof, among its fair and honest creditors, in the order and in the proportions prescribed by law, in case of the voluntary dissolution of a corporation.^ Sec. 171a. Decree of sequestration — Effect. — The provision that in an action for the sequestration of the property of a corporation, its property, after the payment of creditors, should be distributed among the stockholders instead of being returned to the corporation, seems to indicate that a final decree of sequestration works a practical dissolution of the corporation.^ Sec. 171b. Same— Payment of debts.— Where a dividend was properly declared, and checks to the order of stockholders 1 Supra, §§ 168, 169. See Eddy v. Co-operative Dress Ass., 2 N. Y. Code Civ. Proc, § 1792. 3 N. Y. Civ. Proc. Rep. 434 (1883). * N. Y. Code Civ. Proc, § 1793. * Eddy v. Co-operative Dress Ass., 3 N. Y. Civ. Proc. Kep. 442 (1883). PAYMENT OF DEBTS — REFERENCE. 439 were ordered to be drawn on a bank where the money was, it was held, there was an equitable appropriation of the money, so that stockholders were entitled to it as against creditors ;^ and where a savings bank having money on deposit with another bank changes it to a call loan, after both banks have become insolvent, the receiver of the savings bank is estopped from questioning the acts of the bank officers, in converting the deposit into a call loan, and cannot claim preference under the statute.^ It has been said that a receiver of an insurance company cannot be compelled to pay a check drawn by the company in settlement of loss, before his appointment, out of the funds on which the check was drawn, although such funds were withdrawn from the bank by the receiver before the presenta- tion of the check, the check not having been drawn on any particular fund so as to become an equitable assignment.^ The holder of a policy in a life insurance pompany, which matured before the appointment of a receiver, has no right to claim payment before the general distribution, though, per- haps, in an exceptional case, the court may orde.r it.* Sec. 171c. Same— References.— The creditor who brings the action gets no preference. The final decree is for the benefit of all.^ A general creditor by a prior judgment has no lien on unpaid stock subscriptions in preference to other judg- ment-creditors ;® and a surety of a corporation has no prefer- ■ence 7 Sec. I7id. Same— Interest.— Interest should be adjusted up to the date of the assignment ; and if the assets are more than 1 LeEoy v. Globe Ins. Co., 2 Edw. « Morgan v. New York & Alb. R €h. (N. Y.) 657 (1836). E. Co. 10 Paige Ch. (N. Y.) 290 ' L. 1875, c. 371, § 48. See Rosen- (184.3); s. c. 40 Am. Dec. 244; 2 N. back V. M. <6; B. Bank, 10 Hun (N. Y. Leg. Obs. 246; Lownev. American Y.) 148 (1877), afe'd 69 N. Y. 358. F. Ins. Co., 6 Paige Ch. (N. Y.) 482 3 Matter of Merrill 71 N. Y. 325 (1837). <1877); rev'd 10 Hun (N. Y.) 604. « Rankin v. Elliott, 14 How. (N. < People ex rel. Attor.-Gen. v. Y.) Pr. 339 (1856); afE'dl6N. Y. 377. ■Security L. Ins. Co., 71 N. Y. 222 ' Matter of Croton Ins. Co. 2 Barb. (1877); s. c. 11 Hun (N. Y.) 96. Ch. (N. Y.) 360 (1847). 440 employees' and opficbks' salaeies. sufficient to pay the sum so found due, subsequent interest should be paid on all debts ratably.^ Sec. 171e, Same — Employees' salaries — Attorney and Counsel fees — An order directing the receiver to pay all debts " owing to the laborers and employees " of the company " for labor and services actually done in connection with " its business, has been construed to include attorney and counsel fees in litigation connected with the road.^ Sec. 171f. Same— Officer's salaries— .The officers of an insol- vent corporation are not entitled to have their salaries paid in full in preference to the debts of other creditors ; they are only entitled to be paid their ratable proportion of the assets of the company as between them and other creditors.* While officers have no preference for salaries,* yet it is thought that they may set off salary against a debt.^ A corporation entered into an agreement with one L. whereby it employed him for one year as its superintendent at f 10,000 per annum. Seven months thereafter a receiver of its property was appointed in a sequestration action and the receiver discharged L. A judgment of sequestration and directing a distribution of the property of the corporation was thereafter entered and a dividend declared by the receiver. L. presented to him a claim for damages sustained by reason of such discharge, which the receiver rejected. L. thereupon moved that his claim be allowed, and the receiver directed to pay him a dividend thereon. The court said that while this case could be distinguished from that of the People v. The Globe Mutual Life Insurance,^ wherein it was held that a judg- ment dissolving an insolvent insurance company terminated a- contract of employment of an agent made by it, the principle of that case was applicable ; also held, that L. was not, at the 1 Matter of M«rray, 6 Paige Ch. Bk., 1 Paige Ch. (N. Y.) 584 (1829); (N. Y.) 204 (1836). Matter of Croton Ins. Co., 3 Barb. 2 Gurney v. Atlantic & G. W. R. Ch. (N. Y.) 642 (1847). K. Co., 58 N. Y. 358 (1874), rev'g2 5 Matter of Croton Ins. Co., 3. T. & C. (N. Y.) 446. Barb. Ch. (N. Y.) 642 (1847). ' In re Croton Ins. Co., 3 Barb. e 91 n. Y. 174 (1883); s. c. 16 N. Ch. (N. Y.) 642 (1847). Y. Week. Dig. 225, affirming 4 How. * Bruynv. Receiver of Middle Dist. (N. Y.) Pr. 240. RECOVERY OP SUBSCRIPTION TO STOCK. 441 time of appointing the receiver, a creditor of the corporation ; that the assets of the company were subject to claims of the creditors then existing, and such claims must be first satisfied before the fund could be used for another purpose.^ Sec. 172. Same — Subscriptions to Stock— Recovery of. — Where the stockholders of a corporation are par- ties to the action, if the property of the corporation is not sufficient to discharge its debts, the interlo- cutory or final judgment, as the case requires, must adjudge that each stockholder pay into court the amount due and remaining unpaid, on the shares of stock held by him, or so much thereof as is neces- sary to satisfy the debts of the corporation. 2 Sec. 172a. Same — Liability of stockholders.^Acceptance and holding of a certificate of stock subject to the liabilities of a stockholder.^ But a court cannot on summary application^ order stockholders to pay a receiver in a creditor's suit, moneys due on stock.* A creditor who files a bill to procure a receiver should amend where necessary, by making stockholders parties, so as to collect amounts due on shares.* Where the stockholders subscription contained no express promise to pay, the court held, that the receiver could not proceed against part of the stockholders ; the creditor who filed the original bill, should^ if the assets prove not sufficient, amend and make the delin- quent shareholders parties to.* A credit of wrongful divi- dend as a payment of a call on stock, is not payment. Nor is a resolution of the directors that there should be no more calls, a defence.^ ' Eddy V. Co-operative Dress Ass'n * Mann v. Pentz, 3 N. Y. 415 3N. Y. Civ. Proc. Rep. 442 (1883). (1850), rev'g 2 Sandf. Ch. (N. Y.) 2 N. Y. Code Civ. Proc, § 1794. 257 (1845). « Van Cottv. Van Brunt, 2 Abb. 5 Mann v. Pentz, 3 N". Y. 415 (N. Y.) N. C. 283 (1877). See (1850), rev'g 2 Sandf. Ch. (X. Y.) Wheeler v. Millar, 90 N. Y. 353 257 (1845). (1882), aff'g 24 Hun (N. Y.) 541. « Sagory v. Dubois, 3 Sandf. Ch. * Matter of Canajoharie & Catsk. (N. Y.) 466 (1846). E. R. Co., 2 N .Y. Leg. Obs. 199 (1843). 442 LIABILITY OP DIKBCTOBS AJSD STOCKHOIDEES. Sec. 172b. Same— ■WhoarestockholderB.— A stockholder is- the person in whose name stock stands on the books, although he has in fact ti-ansferred it.^ Sec. 173. Same— Lialbilities of Directors and Stock- holders.— If it appears, that the property of the cor- poration, and the sums collected or collectable from the stockholders, upon their subscriptions, are or ^11 be insufficient to pay the debts of the corpora- tion, the court must ascertain the several sums, for which the directors, trustees or other officers, or the stockholders of the corporation being parties to the uction, are liable ; and must adjudge that the same be paid into court, to be applied, in such propor- tions and in such order as justice requires, to the payment of the debts of the corporation.^ Sec. 173a. Same — FaUure to pay debts — ^Liability of stock- holder.— It has been said that where the return of an execu tion at law unsatisfied is the ground of proceeding against a corporation, and the effects of the corporation are not sufficient to pay the debts, the creditor may resort to equity and recover the amount of unpaid subscriptions to the capital stock ; but that in such a case each shareholder is liable only in due pro- portion with the others, and the bill should be filed by the cred- itor in behalf of all the creditors against the corporation, and all the shareholders who have not paid their subscriptions, so that an account may be taken of the debts and assets of the corporation, of the amount of capital not paid in, and the sum due from each shareholder.^ It is thought that where the rights of the creditors are not in question an action will not lie against a subscriber to the capital stock ft a corporation to recover his subscription, or any part thereof, until he is in default after regular calls 1 Mann v. Currie, 2 Barb. (N. T.) ' Mann v. Pentz, 3 N. Y. 415 294 (1848). (1850). 2 N. T. Code Civ. Proc, § 1795. LIMIT ATION —CHARTER LIABILITIES. 443 upon him pursuant to tbe charter.^ Directors who by per- mitting the debts to exceed the statute limit, become liable to creditors, are entitled to the same deductions for advances after dissolution as before .^ Sec. 174. Same— Limiting effect of Article— This article does not repeal or affect any special provision of law, prescribing that a particular kind of corpo- ration shall cease to exist, or shall be dissolved, in a case or in a manner, not prescribed in the article ; or any special provision of law, prescribing the mode of enforcing the liability of the stockholders of a particular kind of corporation.^ Sec. 174a. Same— Charter liabUities.— Under a charter which provides that the stockholders shall be liable until the amount of capital stock has been paid in, judgment creditors are not proper parties defendant, without showing why they were not made parties plaintiff.* And where the charter made stockholders jointly and severally liable for debts to the amount of their stock, and gave creditors a right to sue therefor after demand and refusal, it was held that a creditor could file his bill against stockholders known to him, seeking a discovery of the others, and for payment of his simple contract demand.^ Sec. 175. Same— Proceeding by the People— Action by Attorney-General— Direction by Legislature.— The attor- ney-general, whenever he is so directed by the legis- lature, must bring an action against a corporation created by or under the laws of the state, to procure 1 Mann v. Pentz, 3 N. T. 415 587 (1874), affirming 4 Lans. (N. Y.) <1850). 444; 60 Barb. (N. Y.) 648. 2 Tallmadge v. Fishkill Iron Co., * Young v. ISTew York & LI v. 4 Barb. (N". Y.) 382 (1848). Steamship Co., 10 Abb. (N. Y.) Pr. 8 N. Y. Code Civ. Proc., § 1796. 229 (1860), aff'd 15 Abb. (N. Y.) Pr. Creditors' bills may be maintained 69 (1861). against stockholders of a corporation ^ Bogardus v. Eosendale Mfg. Co. , among whom its property has been 7 N. Y. 147 (1852), rev'g 4 Sandf divided. Bartlett v. Drew, 57 N. Y. (N. Y.) 89. 4i4 ACTION TO FORFEIT CHARTEE. a judgment, vacating or annulling the act of incor- poration, or any act renewing the corporation, or continuing its corporate existence, upon the ground that the act was procured upon a fraudulent sugges- tion, or the concealment of a material fact, made by or with the knowledge and consent of any of the persons incorporated.^ Sec. 175a. Action to forfeit charter — By whom brought. — An action may be brought in the name of the people against a corporation and its officers, on the ground of mismanagement, by them for the purpose of compelling them to account, and for their removal, and for the appointment of a receiver.^ But where an action is brought to annul the corporation and vacate the charter for fraud and concealment in obtaining the charter,^ or for violation of law, or forfeiture, or surrender or usurpation of franchise,* the action must be by the attorney- general. Officers of a corporation who have defrauded it, cannot, by causing a suit to be begun by one of their confederates, and having another confederate appointed as receiver, prevent the attorney-general from bringing an action against them and their company, and his having a receiver appointed therein.^ Although a corporation has abused its power, or committed acts which are unlawful, it nevertheless continues to exist as a corporate body, until, by proper proceedings, the charter has been declared to be forfeited.^ Where the dissolution of a corporation has been decreed by the court the intervention by the attorney-general to enforce the priority of the tax is unnecessary.^ 1 ISr. T. Code cm. Proc, § 1797. = People v. Bruff, 9 Abb. (X. T.) See post, § 182. IST. C. 1.53 (1880). 2 People V. Bruff, 9 Abb. (N. T.) s Ormsby v. Vermont Copper Min- N. C. 153 (1880). Ing Co., 65 Barb. (N. T.) 360 (1873). s N. T. Code Civ. Proc., § 1797, ' Matter of Columbian Ins. Co., S ante. § 175. Abb. App. Dec. (N. Y.) 239 (1866). " JT. Y. Code Civ. Proc., § 1798; post, § 176. LEAVE TO StJE — APPLICATION FOR. 445 Sec. 176. Same— Leave of Court to Sue— Grounds lor Annulling Charter.— Upon leave being granted, as prescribed in the next seotion.i the attorney - general may bring an action against a corporation created by or under the laws of the state, to procure a judgment, vacate the charter or annul the exist- ence of the corporation, upon the ground that it has, either, 1 . Offended against any provision of an act, by or under which it was created, altered, or renewed, or an act amending the same, and applicable to the corporation ; or 2. Violated any provision of law, whereby it has forfeited its charter, or become liable to be dissolved by the abuse of its powers ; or 3. Forfeited its privileges or franchises, by a failure to exercise its powers ; or 4. Done or omitted any act, which amounts to a surrender of its corporate rights, privileges, and franchises ; or 5. Exercised a privilege of franchise, not conferred upon it by law.^ Sec. 176a. Application for leave to sue.— A forfeiture of the franchise of a corporation, in the absence of any special stat- utory provision, can only be enforced by the sovereign power to which the corporation owes its life, in some proeeeding instituted in behalf of the sovereignty .^ The application by the attorney-general,* for leave to bring an action must be 1 Post, § 177. sary for the attorney-general to ob- 2 N. Y. Code Civ. Proc, § 1798. tain leave of the court to bring an 8 Denike v. New York R. L. & C. action under § 1948 of the Code of Co., 80 N, Y. 599 (1880). Civil Procedure against persons as- * It is said in the case of People v. suming to act as a corporation with- Boston H. T. & W. K. Co., 27 Hun in the state without being duly in- !.Y. Supp. 648 (1889) ; 8.0.24 (1889); s. c. 5 Ky. & Corp. L. J. N. Y. St. Rep. 54. 447. SUIT BY STOCKHOLDER. 465 of the board, and any single member of it, is not divested of his office or of its powers and duties by the unfaithfulness of his colleagues. So it was held in the case of First Reformed Presbyterian Church V. Bowden,^ that the majority of the trustees, by their conduct having virtually abdicated their ofBcial func- tions, so far as the bringing of suit was concerned, the remain- ing trustee might sue in the name of the corporation. It was added, however, that in a case of doubt as to which of the trustees is in the right, it would be inexpedient to permit the minority to sue in the name of the corporation. We have no difficulty of the kind in this case, it being con- ceded by the counsel appearing for the motion to discontinue, that if the action might be authorized by a single trustee the plaintiff was entitled to the injunction, pendente lite, which it applied for. Upon principle and authority, I hold that the action may be authorized and maintained by one trustee under the circumstances set forth in the complaint and affidavits, notwithstanding the objection of a majority of the board of trustees. Sec. 192c. Same — Suit by stockholder. — Where the corpo- ration wilfully neglects or refuses to bring suit, a stockholder may sue for himself and other stockholders, making the cor- poration a co-defendant.^ A bill in equity lies by the stockholders of a corporation in behalf of themselves and other stockholders against certain directors, and other individuals conspiring for the injury of 1 14 Abb. (N. Y.) N. C. .356 (1883). (1831) ; Cunningham v. Pell, 5 Paige 2 New York & N. H. R. Co. v. Ch. (N^. Y.) 607 (1836); Bayless v. .Schuyler, 17 N. Y. 596 (1858) ; Eobin- Orne, 1 Freem. Ch. (Miss.) 161 (1840) ; son V. Smith, 3 Paige Ch. (N. Y.) Spering's Appeal, 71 Pa. St. 11 ■222 (1832); s. o. 34 Am. Dec. 212; (1872); Hodges v. New England Hazard v. Durant, 11 E. I. 207 Screw Co., 1 R. 1. 312 (1850); s. c. 53 (1877) ; Newby v. Oregon Cent. R. Am. Dec. 624 ; Charleston Ins. & Co., Deady C. C. 619 (1869). See Trust Co. v. Sebring,5 Rich. (S. C.) Greaves v. Gouge, 69 N". Y. 154 Eq. .342(1853);Deaderiokv. Wilst)n,8 (1877); Butts v. "Wood, 37 N. Y. Baxt. (Tenn.) 108 (1874); Davenport 317 (1867); s. c. 88 Barb. (N. Y.) v. Dows, 85 U. S. (18 Wall.) 626 181 (1862); Verplanck V. Mercantile (1873); bk. 21 L. ed. 96; Samuel v. Ins. Co., 1 Edw. Ch. (N. Y.) 84 Holladay, 1 Woolw. C. C. 400 (1869). 30 466 WHEN STOCKHOLDERS MAY SUE. the corporation, such as leasing the corporate property on improperly low terms, and sharing in the profits with th& lessees ; ^ but it has been held that the stockholders of a cor- poration may bring an action to restrain the collection of a judgment recovered by the president of a corporation in his own name, and to have the judgment declared to 'be the property of the corporation, on the ground that the contract from which the judgment resulted was a contract with the- corporation, and not with the president as an individual.^ Where a contract exceeds the powers of a corporation, a stockholder has authority to £le a bill in equity upon this, ground ; but the more usual method is, for one or more stockholders to sue on behalf of the others.^ Where all the stockholders have a common interest, and are affected in the same proportionate degree, according to the quantity of stock held by each, there should be but one recovery, in which all of the same class should join, or the suit should be prosecuted by one or more of the stockholders for the benefit of himself and the other stockholders.* It is different, however, where there is no community of interest, or where the contract or circumstances are such that the parties occupy different positions.^ Where the stockholders are numerous, the suit may be maintained by one or more in behalf of all the others.^ 1 Robinson v. Smith, 3 Paige Ch. ' Eobinson v. Smitli, 3 Paige Ch, (N. Y.) 222 (1832) ; s. c. 34 Am. Dec. (N. Y.) 222 (1832) ; s. c. 34 Am. Dec. 212; Brewer v. Boston Theatre, 104 212. See Gray v. New Yofk & V. S. Mass. 397 (1870). See Allen v. Curtis, S. Co., 3 Hun (N. Y.) 383 (1875); 26 Conn. 456 (1857) ;Herseyv„Veazie, Mahoney v. People, 5 T. & C. (N. 24 Me. 9 (1844); s. o. 41 Am. Dec. Y. 320 (1875.) 364; Peabody v. Flint, 88 Mass. (6 * Wells v. Jowett, 11 How. (N. Y.>. Allen) 52 (1863); March v. Eastern Pr. 247 (1855). See Rojjinson v. E. Co.,40N. H. i^, 567 (1860); s. 0. Smith, S Paige Ch. (N. Y.) 222 77 Am. Dec. 732; Hodges v. New (1832); 8. c. 34 Am. Dec. 212. England Screw Co., 1 R. I. 312 = Lullng v. Atlantic Mut. Ins. Co., (1850); s. c. 53 Am. Dec. 626; At- 45 Barb. (N. Y.) 516 (1865); Robin- wood V. Menyweather, L. R. 5 Bq. son v. Smith, 3 Paige Oh. (N. Y.) 464 (1867) note; Gregory v. Patchett, 222 (1832); s. c. 34 Am. Dec. 212. 33 Beav. 595 (1864). e Brinckerhoff v. Bostwick, 88 "■ Davis V. Gemmell, 70 Md. 356 N. Y. 60 (1882) ; Robinson v. Smith, ( 1889 ) ; 8. c. 5 Ey. & Corp. L. J. 447. 3 Paige Ch. (N. Y. ) 222 (1832) ; s. a ' CORPORATION NECESSARY PARTY. 467 Sec. 192d. Same — Corporation necessary parly. — Where the stockholders of a corporation sue in their own names, the corporation must be made a defendant, either solely or jointly,, with the directors.^ However, a coi^oration is not a neces- sary party to a suit between its stockholders, as to the owner- ship of certain shares of stock.^ Sec. 192e. Same — Action against Offie-ers.— ^On the collusive' neglect or refusal of managers of a corporation to proceed! against the officers who have wasted or misapplied the fundus of the corporation, the individual stockhold'ers of such cor- poration may file a bill in equity in their own names. ^ In such cases the suit to compel the officers or agents of a company to account shoiild be in the name of the corpora- tion ; but it has been said that a court of equity will never permit a wrong to go unredressed, merely for the sake of form, and that if ib appears that the directors refuse to prose- cute, or if the corporation is still under the control of those who must be made the defendants in the suit, the stockhold- ers, who are the real parties in interest, will be permitted to file a bill in their own names, making the corporation a party defendant.* However, where there has been a misappropria- tion and conversion of the corporate property, suit can only be brought by a stockholder in his own name, after applica- tion and refusal on the part of the corporation to bring an action ; ^ therefore, a complaint which fails to allege that the 34 Am. Dec. 212; Jones v. Johnson, Dec. 212; Passyunk Building Assoc. 10 Bush. (Ky.) 661 (1874). See Butts Appeal, 83 Pa. St. 444 (18'77). V. Wood, .37 N. Y. 317 (1867). * Allen v. New Jersey S. K. Co.., 1 See New York & N. H. K. Co. 49 How. (N. Y.) Pr. 15 (1875); Eob- V. Schuyler, 7 Abb. (N. Y.) Pr. 59 inson v. Smith, 3 Paige CU. (N. Y.> (1858); Cunningham V. Pell, 5 Paige 222 (1832); s. c. 34 Am. Dec. 212. Ch. (N. Y.) 612 (1836) ; Robinson V. See Gardiner v. Pollard, 10 Bosw: Smith, 3 Paige Ch. (N. Y.) 222 (N. Y.) 674 (1863) ; Gray v. New (1832); 8. c. 34 Am. Dec. 212; Haz- York & V. S. S. Co., 5 T. & C. (N. ard V. Durant, 11 K. I. 207 (1877). Y.) 224 (1875); Charitable Corpora- => King V. Barnes, 109 N. Y. 267 tion v. Sutton, 2 Atk. 404 (1742). (1888) ; s. c. 16 N. E. Kep. 332; 4 ' Anderton v. Aronson, 3 How. Ky. & Corp. i. J". 351. (N. Y.) Pr. N. S. 218 (1886); Robin- » Robinson v. Smith, 3 Paige Ch. son v. Smith, 3 Paige Ch. (N. Y.>, (N. Y.) 222 (1832); s. C. 34 Am. 222 (1832); s. c. 34 Am. Dec. 212; 468 ACTIONS AGAINST OFFICERS. corporation, on request, refuses to bring proper action, will be held bad on demurrer ; ^ but it will be unnecessary to make or allesre a demand before the commencement of an action in those cases where the circumstances are such that it ■would be useless ; ^ thus, where it it is averred that the present board of directors openly connived at the fraud com- plained of, and approved the transaction sought to be im- peached, this allegation will be sufficient excuse for not applying to them to bring an action.^ A suit cannot be maintained by the stockholders against the directors or trustees of a corporation, for their mis- management of the concerns of the corporation.* It is said in the case of Kennebec & P. R. Co. v. Portland K. R. Co.,^ that " so long as the corporation is faithful to its trust, the stockholders, as individuals, have no occasion or right, to resort to, or enforce any remedies legal or equitable, to vin- dicate any injury to the property. When it is guilty of a breach of trust, and only then, the relationship of the stock- holders, arising from that trust, gives them a right to pursue the proper remedy to vindicate their rights." In equity, a suit brought for the purpose of compelling the officers and agents of a private corporation to account for a breach of official duty, or for misapplication of corporate Cogswell T. Bull, 39 Cal. 320 (1870). "^ Robinson v. Smith, 3 Paige Ch. See Greaves v. Gouge, 69 N. T. 1.54 (N. T.) 222 (1832); s. c. 34 Am. Dec. (1877); Leslie v. Lorillard, 31 Hun 212; Rogers v. Lafayette Agricul- {S. T.) 305 (1883); Kennebec & P. tural "Works, 52 Ind. 296 (1875); R. Co. V. Portland & E. R. Co., 54 Heath v. Erie R. Co., 8 Blatchf. C. Me. 173 (1866) ; Brewer v. Boston C. 347 (1871). Theatre, 104 Mass. 378 (1870) ; Hunt- » Mussina v. Goldthwaite, 34 Tex. ington V. Palmer, 104 U. S. (14 Otto) 125 (1871); 8. c. 7 Am. Rep. 281: 482 (1881); bk. 26 L. ed. 833; Hawes Heath v. Erie R. Co., 8 Blatchf. C. T. Contra Costa Water Co., 104 U. C. ,347 (1871). S. (14Otto)450fl881); bk. 26 L. ed. * Allen v. Curtis, 26 Conn. 456 827; Dannmeyerv. Coleman, 9 P. C. (1857); Faurie v. Millaudon, 3 Mart. L. J. 281. (La. ) N. S. 476 (1825) ; Smith v. Poor, 1 Hawes v. Contra Costa Water 40 Me. 415 (1855); s. c. 63 Am. Dec. Co., 104 U. S. (14 Otto) 450 (1881); 672; Smith v. Hurd, 53 Mass. (12 bk. 26 L. ed. 827; Foss v. Harbottle, Mete.) .371 (1847); s. c. 46 Am. Dec. 2 Hare 461 (1843); Mozley v. Alston, 690. 1 Phill. Ch. (Eng.) 790 (1847). « 54 Me. 181 (1866). COMPELLING OFFICERS TO ACCOUNT. 469 funds, must be brought in the name of the corporation, and cannot be brought in the name of the stockholders.^ In such cases the jurisdiction is based upon the grounds of fraud, or trust, coupled with the fact that there is no adequate remedy at law, and the stockholders will be permitted to bring an action in their own name making the corporation a party defendant.^ In Dodge v. Woolsey,^ the court says, " it is now no longer doubted, either in England or the United States, that courts of equity, in both, have a jurisdiction over corporations, at the instance of one or more of their members, to apply pre- ventive remedies by injunction to restrain those who admin- ister them from doing acts which would amount to a violation of the charters, or to prevent any misapplication of their capital or profits, which might result in lessening the divi- dends of stockholders, or the value of their shares, as either may be protected by the franchise of a corporation, if the acts intended to be done create what is in law denominated a 1 Austin V. Daniels, 4 Den. (N. T.) 301 (1847) ; Forbes v. Whitlock, 3 Edw. Ch. (N. T.)446 (1841); Cogs- well V. Bull, 39 Cal. 320 (1870); Smith V. Poor, 40 Me. 415 (1855); s. c. 63 Am. Dec. 672 ; Hersey v. Veazie, 24 Me. 12 (1844) ; s. c. 41 Am. Dec. 364; Abbott v. Merriam, 62 Mass. (8 Cush.) 588, 590 (1851); Smith V. Hurd, 53 Mass. (12 Mete.) 371 (1847); s. c. 46 Am. Dec. 690; Bayless V. Ome, 1 Freem. Ch. (Miss.) 175 (1840) ; Brown v. Vandyke, 8 N. J. Eq. (4 Halst.) 795, 799, 800 (185.3); s. c. 55 Am. Dec. 2.50; Hodges v. New England Screw Co., 1 E. I. 312 (1850); s.c. 53 Am. Dec. 626; Dead- erick V. Wilson, 8 Laxt. (Tenn.) 108 (1874); Mozley v. Alston, 1 Phill. Ch. (Eng.) 790 (1847). ^ Greaves v. Gouge, 69 N. Y. 154 (1877); Butts v. Wood, .37 N. Y. 317 (1867) ; 8. c. .38 Barb. (N. Y.) 181 (1862); Eobinson v. Smith, 3 Paige Ch. (N. Y.) 222, 233 (1832); 8. c. 34 Am. Dec. 212; Colquitt v. Howard, 11 Ga. 556 (1852) ; Ryan v. Leaven- worth A. & N. W. E. Co., 21 Kan. 365 (1879) ; Peabody v. Flint, 88 Mass. (6 Allen) 52 (1863); Bayless V. Ome, 1 Freem. Ch. (Miss.) 173 (1840); Wilcox V. Bickel, 11 Neb. 154 (1881); March v. Eastern E. Co., 40 N. H. 548 (1860); s. c. 77 Am. Dec. 732; Brown v. Vandyke, 8 N. J. Eq. (4 Halst.) 795, 799, 800 (185.3); s. c. 55 Am. Dec. 250 ; Hazard v. Durant, 11 E. I. 195 (1877) ; Hodges v. New England Screw Co., 1 R. I. 312 (18.50); s. c. 53 Am. Dec. 626; Deaderick V. Wilson, 8 Baxt. (Tenn.) 108 (1874) ; Dodge v. Woolsey, 59 U. S. (18 How.) 331 (185.5); bk. 15 L. ed. 401 ; Wardell v. Union Pacific E. Co., 4 Dill. C. C. 331 (1877); Greg- ory V. Patchett, 33 Beav. 595 (1864); Salomons v. Laing, 12 Beav. 339 (1849). 8 59 U. S. (18 How.) 331 (1855); bk. 15 L. ed. 401. 470 JTJEISDICTION OP COTJETS OF EQUITY. breach of trust. And the jurisdiction extends to inquire into, and to enjoin, as the case may require that to be done, any proceedings by individuals, in whatever character they may profess to act, if the subject of complaint is an imputed viola- tion of a corporate franchise, or the deilial of a right growing out of it, for which there is not an adequate remedy at law." It is said in the later case of Hawes v. Contra Costa Water Company,^ that to enable a stockholder in a corpora- tion to sustain in a court of equity, in his own name, a suit founded on a right of action existing in the corporation itself, and in which the corporation itself is the appropriate plaintiff, there must exist, as the foundation of the suit, some action, or threatened action, of the managing board of directors or trustees of the corporation which is beyond the authority con- ferred on them by their charter or other source of organiza- tion ; or such a fraudulent transaction completed or contem- plated by the acting managers, in connection with some other party, or among themselves, or with other shareholders, as will result iu serious injury to the corporation, or to the interests of the other shareholders; or where the board of directors, or a majority of them, are acting for their own interest, in a manner destructive of the corporation itself, or of the rights of the other shareholders ; or where the majority of shareholders themselves are oppressively and illegally pur- suing a course, in the name of the corporation, which is in violation of the rights of the other shareholders, and which can only be restrained by the aid of a court of equity. Pos- sibly other cases may arise in which to prevent irremediable injury, or a total failure of justice, the court would be justi- fied in exercising its powers, but the foregoing may be regarded as an outline of the principles which govern this class of cases.* But in addition to the existence of grievances which call for this kind of relief, it is equally important that before the shareholder is permitted, in his own name, to institute and conduct a litigation which usually belongs to the corporation, he should show to the satisfaction of the court that he has exhausted all the means within his reach to 1 104 V. S. (14 Otto) 450 (1881); bk. 26 L. ed. 827. ACTION BY COEPORATION— COMPLAINT. 471 obtain, within the corporation itself, the redress of his griev- ances, or action in conformity to his wishes. He must make an earnest, not a simulated effort, with the managing body of the corporation, to induce remedial action on their part. If time permits, or has permitted, he must show, if he fails with the directors, that he has made an honest effort to obtain action by the stockholders as a body, in the matter of which he complains. And he must show a cause, if that is not done, where it could not be done, or it was not reasonable to require it. The efforts to induce such action as complainant desires on the part of the directors and of the shareholders, when that is necessary, and the cause of failure in these efforts, should be stated with particularity, and an allegation that complainant was a shareholder at the time of the trans- a,ctions of which he complains, or that his shares have devolved on him since by operation of law. Sec. 192f. Same — Action by corporation — Complaint — Allega- tion of incorporation. — In every action by or against a corpo- ration, tlie complaint must give a description of said corpora- tion in order that it may be identified,^ and must state whether such corporation is a foreign or domestic corporation, and if it fails to do so the defect may be taken advantage of by demurrer.2 Thus in Clegg v. Chicago Newspaper Union,* where the complaint alleged that certain defendants were foreign corporations, but did not set forth the state, county, or government by or under whose laws they were created; the court held, that a demurrer on the ground that it did not contain facts sufficient to constitute a cause of action inter- posed by one of such defendants should be sustained, the objection being that one could be taken by demurrer.* 1 Crown Point Iron Co. v. Fltz- 130 (1886); Baker v. Star Print. & gerald, 47 Hun (N. Y.) 638 (1888); Pub. Co., 3 N. T. Month. L. Bull. s. c 14 N. Y. St. Rep. 427. 29 (1881). 2 First Nat. Bank of Northampton « 8 N. Y. Civ. Proc. Rep. 401 V. Doying, 1 N. Y. St. Rep. 617 (1885). (1886). See Lee v. La Compagnie * Followed, Baker v. Star Print. rG ASIDE CONTKACT. officers have been elected for many j'ears.^ The New York Code of Civil Procedure,^ provided that personal service of a summons on a domestic corporation shall be by de- livering a copy to the president or other head of the cor- poration, its secretary or clerk, cashier or treasurer, or a director or managing agent, service on an assistant treasurer, holding none of tlie enumerated positions, is irregular and void.^ Sec. 192i. Same— Contract in fraud of shareholders' rights- Action to set aside.— In Gouraud v. Edison-Gower Bell Tele- phone Company of Europe,* the plaintiff in an action sued on behalf of himself and all other shareholders of a com- pany to set aside an agreement entered into between the defendants and another company, on the ground that such agreement was in fraud of the shareholder's rights and sought discovery of communication relating to the subject matter of the action between the defendant company and its profes- sional advisers. The company objected that there was no fiduciary relation between a company and its shareholders, and on that ground resisted inspection. The court held that the plaintiff was entitled to discovery by analogy to the rule that professional communications were exempted from pro- tection in partnership actions and actions between beneficiaries and trustees when such communications had been obtained for the sake of, and paid for out of, the partnership or trust estate. Sec. 1923. Same — Division of corporate funds — Action by min- ority.— Where the managers and a majority of the stockholders of a corporation divert its assets and property from their legitimate purpose for the use and benefit of one of such majority, a minority stockholder may bring suit without applying to h^ve suit brought in the name of the corpora- tion.^ 1 Bache v. Nashville Hort. Soc, * (L. R. Ch. Div.) 5 Ry. & Corp. 10 Lea (Tenn.) 436 (1882). L. J. 2.34 (1888). 2 N. y. Code Civ. Proc, § 431. ^ Roth well v. Robinson, 39 Minn. Winslow V. Staten Island R. T. 1 (1888) ; s. c. 4 Ry. & Corp. L. J. R. Co., 51 Hun (N. Y.) 298 (1889); 213; Jones v. Morrison, 31 Minn. s. o. 2 N. T. Supp. 682. 140 (1883). CONTRACTS IN RESTRAINT OF TRADE. 475 Sec. 192k. Same — Contracts and restraint of trade — Action by- assignee of corporation.— A contract in restraint of trade run- ning to a corporation " its successors and agents " is assign- able to, and enforceable by, a corporation which succeeds to the business and property of such obligee.^ Thus it is held in the case of the Diamond Match Company v. Roeber,^ that a contract made by a seller with a purchaser, that he will not at any time within ninety-nine years, directly or indirectly engage in the manufacture or sale of friction matches, except- ing in the capacity of agent or employee of said purchaser, Tvithin any of the several states of the United States of America, or the territories thereof, or within tlie district of Columbia, excepting and reserving, however, the riglit to manufacture and sell friction matches in the state of Nevada ^nd in the territory of Montana, is not void as a covenant in restraint of trade. Sec. 1921. Same — Action for torts committed after expiration. •of charter In the case of Miller's Adm'r v. Newburg Orrel Coal Co.,^ a private business corporation, duly chartered and organized under the laws of West Virginia, failed to wind up its business when the time fixed by its charter for its duration expired, but continued thereafter in its charter name to carry on its corporate business ; and it was held that such a corpor- ation may be sued in a court of law in its corporate name for a tort committed by it after its charter had expired. The court say : " At common law, upon the death or dissolution of a corporation its real estate reverted to the grantors or donors, and its personal property escheated to the king, while the debts due to and from it were thereby extinguished, and all actions pending for or against it at the time abated.* But this doctrine had its origin when corporations were either municipal or ecclesiastical, and private business and commer- 1 See Leslie v. Lorillard, 110 N. T. * Eider v. Nelson & A. Union 519 (1888); s. c. 18 N. E. Rep. 363, Factory, 7 Leigh (Va.) 164 (1836); reversing 40 Hun (N. Y.) 392. Board of Sup. v. Livesay, 6 W. Va. 2 106 N. T. 473 (1887); s. c. 13 N. 44 (1873); Mumma v. Potomac Co., E. Eep.419. 33 U. S. (8 Pet.) 281 (1834); bk. 8 8 31 W. Va. 836 (1888) ; 8. c. 8 S. E. L. ed. 945. Kep. 600; 39 Alb. L. J. 399- 476 TORTS AFTER EXPIRATION OF CHARTER. cial corporations were unknown. Upon the dissolution of these old public corporations their real estate, which was usually acquired as a donation to public or pious uses, was held to revert, upon the cessation of the use, to the donors, and their personal property to escheat tp the king, for the want of owners. In these cases there were no stockholders or natural persons who were entitled, equitably or otherwise, to the assets of the deceased corporation, and as in the case of an individual dying without heirs, the personalty went to the king, but to prevent the realty from escheating to the king it was held to revert to the donor, upon the theory that the grant, being made to the corporation for a public or char- itable use, was made only for its life. But this rule, so far as modern business and commercial corporations are con- cerned, has become practicably obsolete. Its unjust operation upon the rights of creditors and stockholders has been gen- erally prevented by statute, and in equity the assets of such a corporation, which represent, not the donations of the prince or ite; pious founder, but the contributions of its stock- holders, are held, independent of statute, to constitute a trust fund, into whosesoever hands they may come, for the benefit of creditors and stockholders.^ Very soon after Rider v. Nelson & A. Union Factory ,2 was decided, and according to the suggestion of the court in that case, the General Assembly of Virginia, at its session of 1836-37, passed an act which has ever since been in force. This statute, without material change, was incorporated in the West Virginia Code of 1868, and has continued to be, and still is, in force in that state. It provides, in substance, that when a corporation shall expire or be dissolved, its property and assets shall, under the direc- tion of the board of directors then in ofBce, or such receiver as may be appojjjited by the circuit court, be subject to the payment of its liabilities, and the surplus, if any, shall be dis- tributed among its stockholders. And suits may be brought, continued or defended ; the property, real or personal, of 1 Bacon v. Eobertson, 59 U. S (15 How.) 304 (1853); bk. 14 L. ed. (18 How.) 480 (1855); bk. 15 L. ed. 705. 499; Curran y. Arkansas, 56 U. S. ^ 1 Leigh (Va.) 154 (1836). ACTS DONE AFTER EXPIKATION OF CHAETEE. 477 the corporation be conveyed or transferred, under the common seal or otherwise ; and all lawful acts be done, in the corporate name, in like manner, and with like effect, as before such •dissolution or expiration ; but so far only as shall be neces- sary or proper for collecting the debts and claims due to the corporation, converting its property and assets into money, prosecuting and protecting its rights, enforcing its liabilities, and paying over and distributing its property and assets or the proceeds thereof, to those entitled thereto.-' It is no •doubt true that the legislature, in passing this statute, had special reference to winding up the affairs of defunct corpo- rations, and disposing of their assets to those entitled thereto, by proceedings in equity, and thus to destroy the common law rule, which was regarded as unjust and inapplicable to modern private business corporations. But the terms em- ployed in the statute do not confine its operations to equity proceedings. It provides, in general terms, that suits may be brought or defended in the corporate name with like effect as before the dissolution, so far as shall be necessaiy for collecting the debts and enforcing the liabilities of the corporation. This language is certainly sufficiently compre- hensive to embrace any suit, whether at law or in equity, Tvhich is proper for collecting the debts due to, or enforcing the liabilities against the corporation; and this seems also necessary to give effect to the general objects and purpose of the statute. It was evidently to be for the mutual benefit of the creditors of the corporation, as well as for the stock- holders and the corporation itself. If either had a cause of action, which could, according to law and its rules or practice, be enforced in a court of law, the purpose of this statute was manifestly to permit the bringing suit upon it in a court of law, for otherwise the general object of the statute could not be obtained. As such de facto corporation it certainly pos- ;sessed no special powers, such as the powers to condemn property, and other like powers, which the law confers only upon corporations existing by legal rights. But the courts icannot reasonably ignore the existence of such a corporation, 1 "W. Va. Code, c. 53, § 59. 478 DOINGS OF DE FACTO COEPOEATION. if it is an immutable fact; nor are the acts and dealings had. b}' and with it necessarily legally ineffective and of no bind- ing force.^ The scope of the powers of the officers and agents of H corporation de facto must be fixed in the same manner as in case of a corporation de jure. Therefore if au association assumes to carry on business, or enter into contracts in a cor- porate capacity, under an expired charter, and those dealing witli it treat it as if it were a corporation, the individual members of such association cannot be made liable, either severally or jointl)', or as partners. This is equally true whetlier the association was in fact a corporation or not, or whether the dealing with the association in its corporate capacity was authorized by the legislature, or prohibited by law, and illegal. If an association assumes a liability, or enters into a contract as a corporation, it is clear the mem- bers of the association do not agree to be bound as individuals, either jointly or severally; nor do they agree to be bound as partners to each other, or to those dealing with the associa- tion. It is equally true that the parties dealing or contract- ing with them do not intend to bind them individually. To treat the individuals as parties to such transaction would therefore involve not only the nullification of the act which was actually contemplated by the parties on both sides, but tlie creation of a different obligation, which neither of the parties intended to make.^ It is a general rule that a party ^ Briggs V. Cape Cod Ship Canal 23 (1874) ; National Union Bank v. Co., 137 Mass. 71 (1884); St. Louis Landon, 45 N. Y. 410 (1871) ; Stafford Q-as-Light Co. v. City of St. Louis, Nat. Bank v. Palmer, 47 Conn. 443 11 Mo. App. 55 (1883) ; 2 Mor. Priv. (1880); Humphreys v. Mooney, 5 Corp., §§ 1002, 1003. Colo. 282 (1880); Glen v. Breard, 35 2 Blanchard v. KauU, 44 Cal. 440 La. An. 875 (1883) ; Vredenburgh v. (1872); Planters' & Miners Bank v. Behan, 33 La. An. 627(1881); Chaffe Padgett, 69 Ga. 15^164 (1882); First v. Ludeling, 27 La. An. 607 (1875); Nat. Bank. v. Almy, 117 Mass. 476 McClinch v. Sturgis, 72 Me. 288 (1875); Trowbridge v. Scudder, 65 (1881); State v. How, 1 Mich. 512 Mass. (11 Cush.) 83 (1853); Fay v. (1846); Second Nat. Bank v. Hall, 33 Noble, 61 Mass. (7 Cush.) 188 (1851) ; Ohio St. 158 (1878) ; Medill v. Collier, Merchants' & Man uf. Bank V.Stone, 16 Ohio St. .")99 (1866); Harrod v. 38 Mich. 779 (1878). See Central Hamer, 32 Wis. 162 (1873) ; Gartside City Sav. Bank v. Walker, 60 N. Y. Coal Co. v. Maxwell, 22 Fed. Rep. 424(1870); Fuller v.Eowe, 57 N. Y. 197 (1884). Compare Garnett v. ESTOPPEL TO DENY COiBPOKATE EXISTENCE. 479 who has contracted with an association assuming to be a cor- poration, and acting in a corporate capacity, cannot after having received the benefit of the contract, set up as a de- fence to an action brought upon it by the corporation that the latter was not a legal corporation, or had no authority to make the contract in a corporate capacity.^ This rule does not rest upon the doctrine of estoppel, as has sometimes been said, but it is founded upon the policy of the common law prohibition against unauthorized corporate action.^ The same rule is applicable in a suit brought against a corporation upon a contract which has been performed by the other party.. A company which has entered into a contract in a corporate capacity, cannot, after the contract has been performed by the other pai^;y,.set up, as a defence to an action for damagesr that it was not a de jure corporation.* The same rule applies- in suits upon other classes of liabilities by or against de facta corporations.* Richardson, .*55 Ark. 144 (1879); Bigelow V. Gregory, 73 HI. 197 (1874) ; Coleman v. Coleman, 78 Ind. 344 (1881); Kaiser V. Lawrence Sav. Bk., 56 Iowa 104 (1881); Field v. Cooks, ,16 La. An. 153 (1861); Martin v. Fewell, 79 Mo. 401, 410 (1883) ; Abbott v. Omaha Smelting & Ref. Co., 44 Neb. 416 (1876); Hill v. Beach, 12 N. J. Eq. (1 Beas.) 31 (1858); Hess v. Werts, 4 Serg. & R. (Pa.) 3-56 (1818). See Holbrook v. St. Paul Fire & Marine Ins. Co., 25 Minn. 229 (1878); Richardson v. Pitts, 71 Mo. 128 (1879); Ash v. Gnie, 97 Pa. St. 493 (1881). 1 Brouwer v. Appleby, 1 Sandf. (N. Y.) 1.58 (1847). 2 Bradley v. Ballard, 55 111. 413 (1870) ; City of St. Louis v. St. Louis Gas. Co., 70 Mo. 69 (1879). »Dooleyv. Cheshire Glass Co., 81 Mass. (15 Gray) 494 (1860); Empire Manufacturing Co. v. Stuart, 46 Mich. 482 (1881). See Eaton v. As- pinwall, 19 N. Y. 119 (1859); Wheel- ock V. Kost, 77 111. 296 (1875) ; Racine & M. R. Co. V. Farmers' L. & T. Co., 49 111. 346 (1868); Frost v. Wal- ker, 60 Me. 468 (1872); Hager v. Cleveland, 36 Md. 476 (1872) ; Wal- worth V. Brackett, 98 Mass. 98 (1867) ; Dooley v. Cheshire Glass Co., 81 Mass. (15 Gray) 494 (1860); Holyoke Bank v. Goodman Paper Co., 63: Mass. (9 Cush.) .576(1852); Empire Manuf. Co. v. Stuart, 46 Mich. 482 (1881) ; Rush v. Halcyon Steamboat Co., 84 N. C. 702 (1881); McHose v. Wheeler, 45 Pa. St. .32, 41 (1863); Reynolds v. Myers, 51 Vt. 444 (1871) ; Stone V. Berkshire Cong. Soc, 14 Tt. 86 (1842) ; Aller v. Town of Cameron, 3 Dill. C. C. 198(1874); Blackburn V. Selma, M. & M. R. Co., 2 Flipp.. C. C. 525 (1879). Compare, Boyce v. Towsontown Station M. E. Church,. 46 Md. 359 (1876). Compare, Central Agricultural & M. Assoc, v. Alabama Gold L. Ins. Co., 70 Ala. 120 (1881); Utley T. Union Tool Co., 77 Mass> (11 Gray) 139 (1858); Gaff v. Flesher,, 33 Ohio St. 107 (1877) ; Keyser v. Hitz, 2 Mackey (D. C.) 473 (1883). * Imboden v. Etowa & B. B Mining Co., 70 Ga. 86 (1853) ; Singer 480 ALLEGING COEPORATB EXISTENCE. The principle, it seems, to be deduced from our statute and these authorities, is that a private business corpora- tion, acting and carrying on its corporate business in its corporate name, after its legal existence has ended by the expiration of its charter, must be held to be a corporation de facto ; and that as such, so long as it in fact so carries on its business, and contracts or incurs liabilities with or to third persons dealing with it as such de facto corporation, it may sue and be sued at law, either in actions ex contractu or ex delicto, and it cannot defeat such action by alleging that its charter had expired before the cause of action arose. Its •directors and stockholders by failing to wind up its business when the charter expires, as it is their duty to do under the statute, cannot relieve the corporation from liability for acts done in its name, and during its actual existence as a de facto corporation. In order to relieve it from liability the corpo- ration must have ceased to exist, both in law and in fact.^ Sec. 192ni. Same — Alleging corporate existence. — It is said in Roberts v. National Ice Company^ that in a complaint against a corporation, it is not necessary to aver that the defendant is a corporation, because that fact may be proved at the trial,8 but the Code as it now stands requires that, in an action brought by or against a corporation, the complaint must aver that the plaintiff or the defendant, as the case may be, is a corporation, and whether it is a domestic or foreign corpora- tion, etc., and the omission of these allegations is ground of demurrer.* McAdam, C. J., said : "The defendant is either a corpora- tion or nothing. It cannot be a natural person, for it has no family or given name.^ It is not a joint-stock company, or Manufacturing Co. v. Bennett, 28 ' Oesterreioher v. Sporting Times W. Va. 16 (1886)^2Mor. Priv. Corp. Pub. Co. 5 N. T. Supp. 2 (1889); §§ 751, 75ri. citing, Baker v. Printing Co., 3 N. 1 Miller's Adm'r v. Newburg T. Month. L. Bui. 29 (1881); Clegg Orrel Coal Co., 31 W. Va. 836 (1888) ; v. Newspaper Union, 8 N. Y. Civ. s. c. 8 S. E. Eep. 600; 39 Alb. L. J. Proc. Rep. 401 (1885); First Nat. 399. Bank v. Doying, 11 N. T. Civ. Proc. 2 6 Daly (N. Y.) 426 (1876). Eep. 61 (1886). 8 Howe Machine Co. v. Robinson, ^ Frank v. Levie, 5 Eob, (N. Y.J 7 Daly (N. Y.) 399 (1878). 599 (1866). VOLTJNTAET APPEARANCE. 481 "the action ought to have been brought against its president or treasurer^ It is not a copartnership, or the action should have been commenced against the individuals composing the ^ firm. It is not a trade name, or the action ought to have been brought against the person using it. It is therefore a corporation, if it is to be regarded as a legal entity for any purpose." Under the New York Code Civil Procedure,^ providing that the complaint must show whether a party to an action is a foreign or domestic corporation, and section 3343, subdivision 18, defining a domestic corporation to be one created by the laws •of the state, or located therein and created by the laws of the United States, or pursuant to the laws in force in the colony before April 19, 1775, it is sufficient if the complaint alleges that the corporation was created first under statutes of other states, and that it was also incorporated under a specified chapter of the laws of New York for a given year, as the facts are stated from which a conclusion as to whether it is a foreign or domestic corporation must follow.* In an action against the "Adams Express 'Company " it is unnecessary to specifically aver that the defendant is a cor- poration. Its name imports that such is the case.* An allega- tion in the complaint that defendant is a corporation is not put in issue by a general denial.^ Sec. 192n. Same— Voluntary appearance.— A corporation, like a natural person, may appear voluntarily by attorney, and such appearance gives jurisdiction to the same extent as if there was actual service of process.^ Tlie irregularity of the appointment of a receiver in a corporation upon the petition of the attorney-general, cannot be questioned voluntarily by any other tribunal than the one by which the appointment was made.^ 1 Code Civ. Proc, § 1919. Ind. 73(1889); s.c. 21 N.E. Eep. 340. , ,2 N. Y. Code Civ. Proc, § 1775; * Eembert v. South Carolina K. ante, § 192. Co. (S. C.) 9 S. E. Eep. 968 (1889). ^ American Baptist Home Mission ^ Attomey-G-eneral v. Guardian Socv. Poote,59Hun, 307(1889);s. c. Mut. Life Ins. Co., 77 N. T. 272 5 N. Y. Supp. 236. (1879). * Adams Exp. Co. v. Harris, 120 ' Attorney-General v. Guardian 31 482 IN WHAT NAME SUIT BROUGHT. Sec. 192o. Same — Name in which suit to be brought. — A cor- poration may be declared against by the name by which it is known, without alleging it to be chartei'ed or incorporated, if the description amounts to an allegation that the defendant is a corporate body.i 'pj^g defendant cannot object that the incorporation of the company was not proved, that it does not appear that the objection was taken at the trial and he afterwards raises the objection, where it affirmatively shows that it was admitted at the trial that the company was a cor- poration and that the defendant at no time intimated that it was not such.i Where there was no prayer of process against a corpora- tion by its corporate name, but only against the officers thereof, and the corporation is not described in the complaint as being a party thereto, the corporation was not before the court as a party to the suit.^ In a case where by the mistake of the solicitor who drew the bill, and who evidently did not intend to make the presi- dent and directors, but only the corporation, a party, the prayer of process was against the president and directors, and was held to be fatal.* Sec. 192p. Same — Fraudulent representations of directors — Action for— Form of Complaint.— In the Case of Harper V. Cham- berlain^ the complaint stated in substance, that the defendants, being directors or trustees of the designated company, pre- tended to be organized for the transaction of business on the plan of mutual insurance, under the New York statute,® fraudulently made false representations to the plaintiffs and others in relation to the capital and conduct of the company, with intent to induce the plaintiffs to effect insurance with Mut. Life Ins. Co., 77 N. T. 272 2 Kennedy v. Cotton, 28 Barb. (1879). • (N. Y.) 59 (1858). iSee Lighte v. Everett Fire Ins. » Verplanck v. Mercantile Ins. Co., Co., 5 Bosw. (N. T.) 716 (1860); 2 Paige Ch. (N. T.) 438 (1831). Roberts v. National Ice Co., 6 Daly * Verplanck v. Mercantile Ins. Co., (N". T.) 426 (1876); Acome v. Amer- 2 Paige Ch. (N. Y.) 438 (1831). ican Mining Co., 11 How. (N. Y.) Ml Abb. (N. Y.) Pr. 234, 24* Pr. 26 (1855). (1860). « Act of April 10, 1849. CONTBACTS ULTRA VIRES. 483 the company, and pay to it premiums therefor ; that the plaintiffs, induced by such representations, did make a con- tract of insurance with said company, and pay the company the sum of $150 premium therefor ; and that by reason and in consequence of these facts, plaintiffs were injured, and sustained damages as alleged in the complaint. These state- ments were held by the court to be sufficient to maintain the action.^ Sec. 192q. Same— Contracts ultra vires.— Where a trading corporation, which has been in the habit of assisting persons with whom it does business, allows its general manager to transact all its business, and he indorses in the corporate name the note of one with whom the corporation is dealing, causes the note to be discounted, and pays the proceeds to the maker, he is not liable to the corporation, though it is obliged to pay the note.^ A defendant who has violated a contract with a corporation is not in a position to claim that the contract is ultra vires of such corporation after he has received the benefits of the contract.^ Thus one who has executed a promissory note to a 1 Citing Cross v. Sackett, 6 Abb. 122(1848); Smith v. Mississippi & A. (N. T.) Pr. 247 (1858); Pontifex v. E. Co., 14 Miss. (6 Smed. & M.) 179 Bignold, 3 Man. & Gr. 63 (1841); s. c. (1846); Stndebaker Bros. Manuf. Co. 42, Eng. C. L. 63. v. Montgomery, 74 Mo. 101 (1881); 2 Holmes v. Willard, 5 N. T. Supp. Stoutimore v. Clark, 70 Mo. 471 610(1889);s.c.24]Sr. Y.St. Eep. 260. (1879); Farmers' & Drov. Bank v. 3 Diamond Match Co. v. Roeber, Williamson, 61 Mo. 259 (1875) ; Smith 106 N. T. 473 (1887); s. c. 13 N. E. v. County of Clark, 54 Mo. 58 (1873) ; Rep. 419. See Jones v. Dana, 24 Camp v. Byrne, 41 Mo. 525 (1867) ; Barb. (N^. Y.) 395 (1855); Imboden Hamtramckv. Bankof Edwardsville, y. Etowah & B. B. Mining Co. , 70 Ga. 2 Mo. 169 (1829) ; Platte Valley Bank 86 (1883) ; Mitchell v. Deeds,49 111. 417 v. Harding, 1 Neb. 461 (1870) ; Con^ (1867) ; Goodrich v. Reynolds, 31 111. gregational Soc. v. Perry, 6 N. H. 164 490 (1863); Vater v. Lewis, 36 Ind. (1833); East Tennessee Iron Mannf. 288 (1871) ; Melkel V. GermanSavings Co. v. Gaskell, 2 Lea (Tenn.) 742 Fund. Soc, 16 Ind. 181 (1861); Blake (1879); Commr'sof Douglass County T. HoUey, 14 Ind. 383 (1860); Jones v. BoUes, 94 U. S. (4 Otto) 104 T. Cincinnati Type Foundry, 14 Ind. (1876); bk. 24 L. ed. 46; County of 90(1860); John V. Fanners' (feMech. Leavenworth v. Barnes, 94 U. S. Bank, 2 Blackf. (Ind.) 867 (1830); (4 Ottol 70(1876); bk. 24L. ed. 63. Massey v. Citizens' Building & Sav. Compare, National Bank v. Orcutt, Assoc. 22 Kan. 624 (1879); Jones v. 48 Barb. (N. Y.) 256 (1867) ; Welland JBank of Tennessee, 8 B. Mon. (Ky.) Canal Co. v. Hathaway, 8 Wend. t84 INDICTMENT — APPBAKANCB. corporation, or has otherwise contracted with it by its cor- porate name, is, in an action to enforce the contract, estopped from denying the existence of the corporation, and from urging any defects or neglect in its organization.^ Sec. 192r. Same— Motion to stay suit— VSThere brought— Where special proceedings are pending before the supreme court for the purpose of distributing the assets of a dissolved corpora- tion, a motion to stay proceedings in such suit need hot, of necessity, be made in the district where the action is pending.^ Sec. 192s. Criminal proceedings — Indictment — Appearance. — - Under the laws of New York, a corporation cannot by any means be compelled to appear and submit to the jurisdiction of a court wherein an indictment against the corporation has been filed.^ Sec. I92t. Same— Proof of incorporation.— In a criminal pros- ecution where the complainant injured is a corporation, the incorporation need only be generally proved,* direct evidence is not required.^ In the recent case of State v. Grant ^ the Supreme Court of North Carolina held that an indictment for larceny from a corporation need not allege the fact of incorporation where the corporate name is correctly set out, and that the charter of the corporation need not be produced on the trial in order to prove its incorporation ; because, this is sufficiently proved by evidence that it carries on such business. The court (N. Y.) 480 (1832); ■Williams v. Bank (1853); Board of Commissioners v. of Michigan, 7 Wend. (N. T.) 540 Shields, 62 Mo. 247 (1876); Cochran (1831); Montgomery R. Co. v. Hurst, v. Arnold, 58 Pa. St. 399 (1868). 9 Ala. 514 (1846); Butchers & Drov. ' Attorney-General v. North Amer- Bank v. McDonald, LSO Mass. 264 ican Life Ins. Co., 56 How. (N. T.) <1881); Wilcox v. Toledo & A. A. K Pr. 160 (1878). » Co., 43 Mich. 584 (1880); White v. « People v. Equitable Gas-Light Campbell, 5 Humph. (Tenn.) 38 Co. 5 N. T. Supp. 19 (1888). (1844). * Ante, § 192f. 1 Black E. & V. R. Co. v. Clarke, ^ See People v. D' Argencour, 95 N. 25 N. Y. 208 (1862); Ransom v. Y. 624; s. c. 2 N. Y. Cr. Rep. 267 Priam Lodge, 51 Ind. 60 (1875) ; Mc- (1884) ; People t. Davis, 21 Wend. N. Broom v. Corporation of Lebanon, Y. 309 (1839). " "^ 31 Ind. 268 (1869) ; Worcester M. I. « 10 S. E. Rep. 554 (1889). V. Harding, 65 Mass. (11 Cush.) 285 PEOOF OF INCORPORATION. 485 say : " We are clearly of the opinion that it was unnecessary to produce the charter in order to prove that the prosecutor •was an incorporated company. In Reg. v. Langton,^ it was held that it was not necessary to produce the certificate of incor- poration of a company, but that the existence of the company was sufficiently proved by evidence that it had carried on business as such.^ " We are also of opinion that the fact of incorporation need not be alleged where the corporate name is correctly set out in the indictment. We are aware that there is quite a diversity of opinion upon this subject in various states, but we think the better view is that such an allegation is unneces- sary. In State v. Bell,^ it is said that ' the name of the owner of property stolen is not a material part of the offence charged in the indictment, and it is only required to identify the transaction, so that the defendant, by proper plea, may pro- tect himself against another prosecution for the same offence. * * * The owner may have a name by reputation, and, if it is proved that he is as well known by that name as any other, a charge in the indictment in that name will be suffi- cient.' " We see no reason why a conviction upon the present in- dictment would not be a bar to another in which the fact of incorporation is alleged. Here the name is correctly de- scribed, and there could be but little trouble as to the identi- fication of the prosecutor. In Stanley v. Richmond & D. R. Co.,* it is distinctly decided that such a company may be designated by its corporate name, and that such a description is good upon demurrer. This case cites, with approval, the language of Maule, J., in Woolf v. The City Steamboat Co.,^ where he says that such a description of the prosecutor is ' not at all out of the usual form. It impliedly amounts to an allegation that the defendant is a corporate body.' " 1 L. E. 2 Q. B. Div. 296 (1876) ; 46 and State v. Western N. C. R. Co. Law J. M. Cas, 136. 95 N. C, 607 (1886). 2 2 Kose Crim. Ev. 868; People v. = 65 N. C. 313 (1871). Davis, 21 Wend. (N. Y.) 309 (1839) ; » 89 N. C. 33 (1883). People V. Schwartz, 32 Cal., 160 ^ 7 Man. & Gr. 103, s. c. 62 Eng. (1867); Eeed v. State, 15 Ohio, 217; C. L., 103 (1849). 486 PROVING INCOEPOKATION NECBSSAEY. Sec. 193. Same— When proof of Corporate existence unnecessary.— In an action, brought by or against a corporation, the plaintiff need not prove, upon the trial, the existence of the corporation, unless the answer is verified, and contains an affirmative alle- gation that the plaintiff, or the defendant, as the case may be, is not a corporation.! Sec. 193a. Same — Evidence of Incorporation. — While a cor- poration is required and the New York Code of Civil Pro- cedure 2 to give a description of itself in its complaint so that it may be identified, yet, this account of itself need not be proved unless put in issue by the pleadings;^ but it is thought that a general denial is not sufficient for that pur- pose.* And it is said in Waterville Manuf. Co. v. Bryan,^ that by the common law a corporation suing in its corporate name was bound to prove, on the general issue being pleaded, their corporate existence ; and that the statute disposing with such proof, unless nul tiel corporation is pleaded, only applies to corporations created by, or under, a statute of this state. That a complaint alleges that plaintiff is a corporation organized under a law of this state, and the answer simply avers that defendant has no knowledge or information suffi- cient to form a belief as to the truth of the allegation, the plaintiff is not required to prove the corporate existence ; such an averment is not equivalent to an " affirmative allegation," that plaintiff is not a corporation which is requisite to impose upon it the burden of proof. ® 1 N. Y. Code Civ. Proc. § 1776. ship Co., 3 K. Y. Civ. Proc. Rep. 2 N. Y. Code Civ. Proc., § 1775; 263 (18S3). ante, § 192. * * Bank of Genesee v. Patchin 3 Park Bank v. Tilton, 15 Abb. Bank, 13 X. Y. 313 (1855). Compare, (N". Y.) Pr. 384 (1863); Howe Ma- Howe Machine Co. v. Robinson, 7 chine Co. v. Robinson, 7 Daly (N. Daly (N. Y.) 399 (1878). Y.) 399 (1878); Crown Point Iron ' 14 Barb. (iST. Y.) 182 (1851). Co. V. Fitzgerald, 47 Hun (N'. Y. ) * Concordia Savings & Aid Assoc. 638 (1888); s. c. 14 N. Y. St. Rep. v. Read, 93 N. Y. 474 (1883). See 427; Bengtson v. Thingvalla Steam- Matter of New York L. & W. R. Co., 99 N. Y. 12 (1885). MISNOMER — WHEN WAIVED. 487 An answer by a defendant that " he is informed and believes the plaintiff is not a corporation," does not amount to a plea *' that the plaintiff is not a corporation." ^ Where a corporation is sued its general appearance and answer in the action is an admission of its corporate existence, and it cannot afterwards insist that the plaintiff must affirm- atively prove it to be such.^ In Roberts v. National Ice Co.,^ wHere it appeared that the defendant acting under the name of the " The National Ice Co." employed the plaintiff to drive an ice-wagon, which bore the name of the company upon its sides, the court held, that this was sufficient evidence of incorporation to maintain the action. Sec, 194. Same— Misnomer — when Waived.— In an action or special proceeding, brought by or against a corporation, the defendant is deemed to have waived any mistake in the statement of the corpo- rate name, unless the misnomer is pleaded in the answer, or other pleading in the defendant's behalf.* Sec. 195. Same— Action against a Corporation upon a TVote, etc. — In an action against a foreign or domestic corporation, to recover damages for the non-payment of a promissory note, or other evidence of debt, for the absolute payment of money, upon demand, or at a particular time, an order, extending the time to answer or demur, shall not be granted, except by the court, upon notice to the plaintiflTs attorney. In such an action, unless the defendant serves, with a 1 Bengtson v. Thingvalla Steam- 456 (1878) an action against a cor- ship Co., 3 N. Y. Civ. Proc. Rep. 263 poration, there was a misnomer but (1883) ; East River Bank v. Rogers, the corporation made default and the 7 Bosw. (N. Y.) 493 (1860). court held that the bond was made 2 Derrenbacherv. Lehigh Valley K. and that it was not available in a. ■Co., 21 Hun (N. Y.) 612 (1880). subsequent proceeding placed on the ' G Daly (N. Y.) 426 (1876). judgment of the assignment of the * N. Y. Code Civ. Proc, § 1777. receiver. In Whittlesey v. Frantz, 74 N. Y. 488 DAMAGES FOE NON-PAYMENT OF NOTE. copy of his answer or demurrer, a copy of an order of a judge, directing that the issues presented by the pleadings be tried, the plaintiff may take judg- ment, as in case of. default in pleading, at the expira- tion of twenty days after service' of a copy of the complaint, either personally with the summons, or upon the defendant's attorney, pursuant to his de- mand therefor ; or, if the service of the summons was otherwise than personal, at the expiration of twenty days after the service is complete.^ Sec. 195a. Same — Damages for non-payment of promissory note, etc.— New York Code of Civil Procedure,^ authoriz- ing plaintiff in an action against a corporation for damages "for the non-payment of a promissory note or other evi- dence of debt for the absolute payment of money upon de- mand or at a particular time," to take judgment after twenty days, unless an order of the judge directing the issues to be tried be served with the answer, the section being a modifica- tion of the original act which read, " in an action upon any contract, note, or other evidence of debt," has no application to an action against a corporation as indorser of a note.* ' N. Y. Code Civ. Proc, § 1778. Hun (N. T.) 583 (1881); New York. This section is in derogation of the L. Ins. Co. v. Universal Ins. Co., conunon law and must be strictly 88 N. Y. 424 (1882) ; s. c. 14 N. Y. constmed. Bradley v. Albemarle Week Dig. 149. See, Anonymous, Fertilizing Co., 2 N. Y. Civ. Proc. 6 Cow. (N. Y.) 41 (1820); Tyler v. Kep. 50 (1882). Mtna, Ins. Co., 2 Wend. (N. Y.) 280 The instruments referred to in this (1829). section are absolute and not condi- In Bradley v. Albemarle Pertiliz- tional contracts. See, New York L. ing Co., 2 N. Y. Civ. Proc. Rep. 50 Ins. Co. V. Universal L. Ins. Co., 88 (1882); the plaintiff united a cause of N. Y. 424 (1882), overruling, McKee action against a corporation upon a v. Metropolitan Ills. Co., 25 Hun promissory note with one for goods (N. Y.) 583 (1881); Studwell v. sold and delivered; and the court held Charter Oak Ins. Co., 19 Hun (N. Y.) that by so doing he waived the benefit 127 (1879). An ordinary Life Insur- of this section. ance policy is not an instrument ^ N. Y. Code Civ. Proc, § 1778; " for the absolute payment of money ante, § 195. upon demand or at a particular time" * Storer v. Times Print. & Pub. within the meaning of this section. Co., 6 N. Y. Supp. 63 (1889). McKee v. Metropolitan Ins. Co., 25 SUIT BY FOREIGN COEPOKAXION. 489 Sec. 196. Same— When Foreign Corporation may Sue. — An action may be maintained by a foreign corpo- ration, in like manner, and subject to the same regulations, as where the action is brought by a domestic corporation, except as otherwise specially prescribed by law. But a foreign corporation cannot maintain an action, founded upon an act, or upon a liability or obligation, express or implied, arising out of, or made and entered into in consideration of, an act which the laws of the state forbid a corpora- tion or association of individuals to do, without express authority of law. This section does not affect the validity of a meeting of the stockholders or directors of a foreign corporation, held within the state, where such a meeting is authorized by the laws of the state, country, or government by or under which the corporation is created ; or of an act done at such a meeting, which is not in conflict with the same laws, or the laws of the state. ^ Sec. 196a. Same— Right to sue — Security for costs. — It is a general rule in all the states that foreign corporations may- be permitted to sue and be sued in the courts of a state other than the one creating such corporation, subject to the condi- tions imposed as to costs, service of process, and the like, in the state where suit is brought.^ Where such corporations 1 N. Y. Code Civ. Proc, § 1779. E. Co., 10 How. (N. Y.) Pr. 1 (1854) ^ Mutual Benefit L. Ins. Co. v. Silver Lalie Bank v. North, 4 Johns. Davis, 12 N. Y. 569 (1855); Persse & Ch. (N. Y.) 370 (1820); Cunningham B. Paper Works v. Willett, 14 Abb. v. Pell, 5 Paige Ch. (N. Y.) 607 (1836) (N. Y.) Pr. 119 (1862); Elizabeth American Ins. Co. v. Owen, 81 Mass port Manuf. Co. V. Campbell, 13 Abb. (15 Gray) 491(1860); British Am (N. Y.)Pr.86(1861); Fiskv. Chicago Land Co. v. Ames,47Mass. (6 Mete.; K. I. & P. R. Co., 4 Abb. (N. Y.) 391 (1843); Eunyan v. Coster, 39 U. Pr. N. S. 878 (1868); New York S. (14 Pet.) 122 (1840); bk. 10 L. ed Floating Derrick Co. v. New Jersey 382; Bank of Augusta v. Earle, 38 U Oil Co., 3 Duer, (N. Y.) 648 (1854); S. (13 Pet.) 519, 588, 589 (1839); bk Bank of Commerce V. Rutland, &W. 10 L. ed. 274, 307; Society, &c., v. 490 SUIT AGAINST FOREIGN CORPOEATION. are required to give surety for the costs of the action the filing of such security is not a condition precedent of its right to sue.^ The omission to file such security at the commencement of the action is merely an irregularity,^ and if their proceedings are sought to be set aside by reason thereof they will be relieved on filing security and paying costs of motion.^ In the case of the Direct United States Cable v. Dominion Telegraph Co.,* an action was brought, by one foreign corpor- ation against another foreign corporation, and certain indi- viduals residents of this state who had been appointed arbitrators by an agreement between the two corporations to .settle differences between them, the object of which action was to restrain the prosecution of the arbitration. The court held, that it had no jurisdiction. A foreign corporation keeping an office in this state for receiving deposits and discounting notes without being expressly authorized by the laws of this state to do so cannot maintain an action for money loaned either on a note or other security taken on such loan or on the account of money lent.5 Sec. 197. Same— When Foreign Corporation may be sned._An action against a foreign corporation may be maintained by a resident of the state, or by a domestic corporation, for any cause of action. An action against a foreign corporation may be main- tained by another foreign corporation, or by a non- resident, in one of the following cases only : 1. Where the action is brought to recover dam- Wheeler, 2 GaU,»C. 0. 105 (1814) ; « Bank of Michigan v. Jessup, 19 Beme v. Bank of England, 9 Ves. Wend. (K. Y.) 10 (1837). .347 (1804). * 84 N. T. 153 (1881), reversing 22 1 Persse & Bfooks Paper Works v. Hun (N. Y.) 568. AVillett, 14 Abb. (N. T.) Pr. 119 » jSTew Hope Delaware Bridge Co. (1862). V. Poughkeepsie Silk Co., 25 Wend. ' Persse & Brooks Paper Works v. (N. T.) 648 (1841), Willet, 14 Abb. (N. T.) Pr. 119 (1862). VOLUNTARY APPEAKANCE. 491 ages for the breach of a contract made within the state, or relating to property situated within the state, at the time of the making thereof. 2. Where it is brought to recover real property- situated within the state, or a chattel, which is re- plevied within the state. 3. Where the cause of action arose within the state, except where the object of the action is to affect the title to real property situated without the state. ^ Sec. 197a. Same — Foreign corporation — Suit against — Voluntary- appearance. — A voluntary appearance of a corporation by offi- cers in court will be valid and give jurisdiction whether the service of process upon its officers be good or not, pro- vided the corporation is still in existence.^ While in an action against a foreign corporation a general appearance will give the court jurisdiction over the person of the defendant, yet it does not necessarily give jurisdiction over the subject mat- ter of the action, and if that is not within the statute * the complaint must be dismissed.* And where the defendant has voluntarily appeared he may still object to the jurisdic- tion of the court over the subject matter of the action.^ It is said in De Bemer v. Drew,^ that where a foreign cor- 1 N. T. Code Civ. Proc, § 1780. = Murray v. Vanderbilt, 39 Barb. Before the passage of this statute a (N. Y.) 140 (1863). ioreign corporation could not be sued * N. Y. Code Civ. Proc, §1780, in any case in the courts of this state ante, § 197. unless it saw fit to voluntarily appear * Ervin v. Oregon E. & Nav. Co., in the action. Hann v. Bamegat & 62 How. (N. Y.) Pr. 490 (1882). Long Beach Improvement Co., 7 ' ^rvin v. OregonR. &Nav. Co.,62 N. Y. Civ. Proc. Rep. 222 (1885). See, How. (TST. Y.) Pr. 490 (1882). See Car- Gibbsv. Queen Ins. Co., 63 N. Y. penterv. Central Park N. & E. R. R. 114 (1875); s. c. 20 Am. Rep. 513; Co., 11 Abb. (N". Y.) Pr. N. S. 416 Whitehead v. Buffalo & L. H. R. (1872); Burnett v. Chicago & L. H. Co., 18 How. (N. Y.) Pr. 218 (1859); E. Co., 4 Hun (N. Y.) 114 (1875); Campbell v. Champlain & St. L. R. Robinson v. West, 1 Sandf. (N. Y.) Co., 18 How. (N. Y.) Pr. 412 (1858). 19 (1847). As to when it is unnecessary that « 39 How. (N. Y.) Pr. 466 (1870); all the stockholders should be taken s. c. 37 Barb. (N. Y.) 438. as parties. See, Redmond v. Hoge, 5 T. & C. (N. Y.) 386 (1875). 492 SUIT BY NON-EESIDENT. poration appears by its attorney, and thus submits itself to the jurisdiction of the court, and by the result of the action of the court such corporation becomes the judgment debtor of the plaintiff in that action, this gives the court power over its propertj'' and rights of action in the state, and brings the corporation as much within the jurisdiction of the court as if it were a corporation under the laws of the state. The fact that it is a foreign corporation does not relieve it from the status of being a judgment debtor, nor from the provisions of the Code regarding " provisional remedies," which apply in general terms to all judgment debtors when an execution has been returned unsatisfied, and the judgment debtor refuses to apply his property in satisfaction of the judgment. Sec. 197b. Same— Suit by non-resideut.— A suit by a non- resident against a foreign corporation can only be maintained in one of the cases mentioned in the Code of Civil Proced- ure.i And a non-resident of the State of New York, even though he is a citizen thereof cannot maintain an action iu the courts of this state against a foreign corporation, except in one of the cases specified in this section.^ In the absence of an allegation in the complaint that the plaintiff is a non-resident of the state, and therefore disqual- ified, by reason of this section, to sue, such non-residence will not be assumed in support of a demurrer on the ground of want of plaintiff's capacity to sue.^ A non-resident of this state cannot maintain an action in a court of this state against a foreign corporation to compel the specific performance of a contract to sell lands situate with- out the state.* The courts of this state have jurisdiction over an action under subdivision three of section 1780 of the Code of Civil Procedufe,® where the cause of action arose in this 1 Code Civ. Proc, § 1780; ante, « Leslie v. Lorillard, 18 N. T. § 197. see Ervln V.Oregon R. & Nav. Week. Dig. 288 (1883). Co., 28 Hun, (N. Y.) 269 (1882). ■• Hann v. Eamegat& L. B. I. Co., 2 Adams v. Penn. Bk. of Pitts 7 N. Y. Civ. Proc. Rep. 222 (1885). burgh, 35 Hnn, (N. Y.) 393 (188.=i); ^ gee ante, § 197. s. c. 21 ]Sr. Y. Week. Dig. 154. SERVICE OP SUMMONS. 493 State, although the plaintiff and defendant are foreign cor- porations.i But it is said in Brooks v. Mexican National Con- struction Company,^ that the superior court has no jurisdic- tion over a foreign corporation in an action brought by a non- resident against such corporation, and an objection to the j Lirisdiction of the court may be had at any time, although it is not taken in the answer. Sec. 197o. Same— Service of Summons.— Actions against a foreign corporation must be commenced by the service of a summons in the form prescribed by the Code as in other civil actions, and a judgment recovered thereupon will be joint and may be enforced against any property of the defendant found in the jurisdiction. ^ Suits in person may be brought against a foreign corpora- tion by service of a process upon its officers or agents within the jurisdiction.* Thus, in the case of Tuchband v. Chicago and Alton Railroad Company,^ which was a suit against a foreign corporation, the plaintiff's affidavit alleged that defendant had property in the state, consisting of cars, office furniture, tickets, etc. One Charles Oberg was described in defendant's list of " officers and agents," as its " general agent, passenger department, 261 Broadway, New York." The windows at 261 Broadway were inscribed with signs indicating that the office is the general office for the general railroad business of defendant. The court held that it sufficiently appeared that the defendant had property in the state, and that Oberg was its " managing agent," and that a service of summons upon him, under the New York Code of Civil Procedure,® permitting service on a foreign 1 Toronto Trust Co. v. Chicago T. 114 (1875); s. c. 20 Am. Rep. B. & O. R. Co., 32 Hun (N. Y.) 190 513; Plympton v. Bigelow, 13 Abb. (1884). Following Hibernia Nat. (N. Y.) N. C. 173, 177 (1883); Bk. V. Lacombe, 84N. Y. 367 (1881). s. c. 66 How. (N. Y.) Pr. 131; 93 N. 2 64 How. (N. Y.) Pr. 364 (1883) ; Y. 592. s. c. 50 N. Y. Super. Ct. (18 J. & S.) ^ 115 N. Y. 437 (1889) ; s. c. 22 N. 281. E. Rep. 360; 7 Ry. & Corp. L. J. 49, ' Gibbs V. Queen Ins. Co., 63 N. affirming 6 Ry. & Corp. L. J. 366. Y. 114 (1875); s. c. 20 Am. Rep. 513. « N. Y. Code Civ. Proc, § 432. * Gibbs V. Queen Ins. Co., 63 N. 494 SERVICE OP SUMMONS BY PUBLICATION. corporation, having property in the state, by leaving a copy of the summons with its "managing agent in the state," was good. Sec. 197d. Same — Service of Summons by publication. ^A foreign corporation may be proceeded against in chancery by advertising under the statute, as in case of an absent defend- ant.^ Where a board of directors consists of sixteen, a joint action against four of the number for an act done as directors, cannot be maintained.^ Sec. 197e. Same — Service on oificer outside of state of domicil. — - At common law no jurisdiction can be acquired over a corporation by the service of process upon its officers outside of the state which gave it existence ; ® and in many of the states a foreign corporation can only be sued by express statutory legislation authorizing such suit against foreign corporations having agents within the state conducting the business for which the corporation was organized.* Statutes providing for such services are valid,^ because any service which would be sufficient, against a domestic corporation may be constitutionally made sufficient against a foreign corpora- tion,® and besides a corporation which does business in a foreign state invokes the comity of the state in which it transacts its business, and thereby waives the right to object to the mode of service of process which the laws of such, state authorize.' 1 Franklin Fire Ins. Co. v. Jen- Camden Rolling Mill Co. v. Swede kins, 3 Wend. (N. T.) 130 (1829). Iron Co., 32 N. J. L. (3 Vr.) 15 1866) ; 2 Cunningham v. Pell, 5 Paige Ch. Ohio & Miss. E. Co. v. Wheeler, 66 (K. Y.) 607 (18.36). U. S. (1 Black.) 297 (1861); bk. 17 ' Barnett v. Chicago & L. H. R. L. ed. 131; Augusta Bank v. Earle,3& Co., 4 Hun (N. T.) 114 (1875); U. S. (13 Pet.) 519 (1839); bk. 10 L. McQueen T. Mlddletown Manuf. Co., ed. 274; Dallas v. Atlantic & Miss. 16 Johns. (N. Y.fe (1819) ; Peckham R. Co., 2 McAr. D. C. 146(1875); V. North Parish, 83 Mass. (16 Pick.) Lathrop v. Union Pac. R. Co., 1 286 (1834). McAr. D. C. 234 (1873.) * Redmond v. Enfield Manuf. Co., ^ Moulin v. Trenton Ins. Co., 24 13 Abb. (N. T.) Pr. N. S. 332 (1872); N. J. L. (4 Zab.) 222, 234 {18r>A). Howell V. Chicago & N. W. E. Co., « Pope v. Terre Haute Car Manuf. 51 Barb. (N. Y.) 378 (186S); White- Co., 87 N. Y. 137 (1881). aff'g 24 heard v. Buffalo & Lake H. R. Co., Hun (N. Y.) 238. 18 How. (N. Y.) Pr. 2.30 (1859); ' Merchant's Manuf. Co. v. Grand SERVICE ON OFFICER OUTSIDE OF DOMICIL. 495 "Where an agent or an attorney is appointed by a foreign corporation, in compliance with the requirement of a state statute, such appointment amounts to a consent to the stat- ute, and binds the corporation ; ^ and it is thought that where the company fails to appoint such an agent, in compliance with the statutory requirement, it may nevertheless be sued, and that service of process on its general agent will have the same effect to bind the company as if the statute had been complied with. ^ The service of process, however, cannot be made on an officer who is occasionally found within another jurisdiction, and a law sanctioning such a service, is void, because the character of such person as an officer of the corporation does not accompany him to another jurisdiction than that in which he is appointed. ^ Where the plaintiff is a resident of this state service of a summons upon the proper officer of a foreign corporation, de- fendant, who is here temporarily and not on the business of the corporation, will suffice, although the defendant has no corporation here and the action did not arise here, and any judgment he my procure can be enforced against any of the Trunk K. Co., 6-3 How. (N. T.) Pr. Pomeroy v. New York & N. H. R. 459 (1882); Barnett v. Chicago & E. Co., 4 Blatchf. C. C. 121 (1857); Lake H. R. Co., 4 Hun (N. Y. 114 Knott v. Southern L. Ins. Co., 2 (1875); Bawknlght v. Liverpool & Woods C. C. 479 (1874); Newby v. London & Globe Ins. Co., 55 Ga. 195 Colt. Pat. E. A. Co., L. R. 7 Q. B. (1875); Hartford Ins. Co. v. Carugi, 293 (1872). 41 Ga. 671 (1871); National Bank of i Capen v. Pacific Mut. Ins. Co.. Commerce V. Huntington, 129 Mass. (5 N. J. L. (1 Dutch.) 67 (1855); 444 (1878); National Cond. Milk Co. s c. 64 Am. Dec. 412; Carstairs v. Brandenburgh, 40 N. J. L. (11 Vr.) Mechanics' & Traders' Ins. Co., 13 111 (1878) ; Ex parte SchoUenberger, Fed. Rep. 823 (1882). 96 U. S. (6 Otto) 369 (1877); bk. 24 2 Hagerman v. Empire State Co., L. ed. 853; overruling Day v. Newark 97 Pa. St, 534 (1881). Ind. Rub. Co., 1 Blatchf. C. C. 628 = McQueen y.- Middletown Mfg. (1850); Chicago & N. W. R. Co. v. Co., 16 Johns. (N. Y.) 6 (1819); Mid- Whitton, 80 U. S. (13 Wall.) 270 dlebrooks v. Springfield Ins. Co., 14 (1871); bk. 20 L. ed. 570; Baltimore Conn. 301 (1841); Peckham v. North & O. R. Co. V. Harris, 79 U. S. (12 Parish, 33 Mass. (16 Pick.) 286 (1834); Wall.) 65 (1870); bk. 20 L. ed. 354; Newell v. Great Western E. Co., 19 Hume V. Pittsburgh, Cin. & St. L. R. Mich. 345 (1869) ; State v. Ramsey Co., 8 Biss. C. C. 31 (1877); Myers Co., Dist. Ct. 26 Minn. 234 (1879); V. Dorr, 13 Blatchf. C. C. 22 (1870); Latimer v. Union Pac. E. Co., 43 496 SERVICE OF PROCESS IN V. S. COURTS. ■defendant's property found at any time within tlie state .^ In Hiller v. Burlington & Missouri River Railroad Company ,2 ■where the plaintifE contracted with a foreign corporation to represent them and their interests, with the general office in Ifew York City, and was required in the prosecution of his business for such company to go to Europe and to various parts of the United States, the court held that the cause of action arose in New York, and a service of summons upon a director while he was temporarily there on his own business, was good, although the defendant had no property there. It is said in Pope v. Terre Haute, Car and Manuf'g Co.,* that where plaintiffs, residents of this state, have a cause of action against a foreign corporation, a service upon the presi- dent of such corporation while passing through this state is sufBcient to commence the suit, although his presence within the state had no relation whatever to the corporation or to his essential duties, irrespective of the question whether or not the corporation has property within the state, or the cause of action arose here ; and any judgment procured can be en- forced against of the defendant's property found at any time ■within the state. Sec. 197f. Same — Service of Process in United States Courts, — In the United States courts process may be served upon foreign corporations in each state of the union, in the manner provided for by the state laws ; and in those states where there is a statutory provision that process may be served on any general agent in the state, the United States courts apply the rule to any such agent if found within the district.* Mo. 105 (1868); Moulin v. Trenton * Ex parte Schollenberger, 96 U. S. Ins. Co., 24 N. J. L. (4 Zab.) 234 (6 Otto) 376 (1877); bk. 24 L. ed. (18.54). Compare Pope v. Terre 853; overruling Day v. Newark Ind. Haute Car. Manlf'g Co., 87 N. T. Eub. Co., 1 Blatchf. C. C. 628(1850); 137 (1881). Pomeroy v. New York & N. H. E. 1 Pope V. Terre Haute Car & Co., 4 Blatchf. C. C. 121 (1857); Manuf'g Co., 87 N. T. 137 (1881), Lung Chung v. North Pac. E. Co., aff'g 24 Hun, 238. 19 Fed. Eep. 254 (1884). Compare 2 70 N. T. 223 (1877). St. Clair v. Cox, 106 U. S. (16 Otto) 8 87 N. T. 137 (1881), afl'g24 Hun 850 (1882) ; bk. 27 L. ed. 222. (N. Y.)238; s. c. 60 How. (N. T.) Pr. 419. CHAPTER XII. JUDICIAL SUPERVISION AND CONTROL. MISCONDUCT OF DIRECTOKS OB OFPICEES — POWER OF EQUITY OVER — COMPLAINT — ^DEMAND — ^RESPONSIBILITY OF OFFI- CERS—SUPERVISION OF CORPORATION— VISITOEIAL POWERS BY WHOM ACTION TO BE BROUGHT — ^FRAUDULENT MIS- MANAGEMENT — ACTION BY STOCKHOLDER — ACTION BY CREDITOR — ^ACTION BY ATTORNEY-GENERAL — ^FRAUDS IN SUBSCRIPTIONS FOR STOCK — ^LIABILITY OF OFFICERS AND AGENTS — ^FRAUDS IN ORGANIZATION — ^FRAUDULENT MIS- CONDUCT OF DIRECTORS — ^FALSE REPORTS — ^REMEDY FOB FRAUDS OP DIRECTORS — PRESUMED ASSENT — ^INJUNCTION. Sec. 198. Directors and officers of corporation — Misconduct of — ^Action for. Sbc. 198a. Same — Power of equity over. Sec. 198b. Same — Complaint — Demand. Sbc. 198c. Same — Restraint of trustees. Sec. 198d. Same — Responsibility of officers. Sec. 198e. Same — Suspension of corporation. Sec. 198f . Same — Visitorial powers. Sec. 199. Same — By whom action to be brought. Sec. 199a. Same — Action for fraudulent mismanagement. Sec. 199b. Same — Parties to — The corporation is a necessary party — Action affecting its mismanagement. Sec. 199c. Same — Stockholder's action. Sec. 199d. Same — Action of creditor — Meaning of term. Sec. 199e. Same — Action by attorney-general. Sec. 200. Fraudulent management of and fraudulent insolvencies by corpo- rations — ^Frauds in subscription of stock for corpo- ration. Sec. 201. Frauds in the issue of stock, scrip, etc. Sec. 202. Fraudulent sale of shares — Liability of officer, agent, etc. Sec. 203. Frauds in organization of corporation or increase of capital. 498 MISCONDUCT OF OFPIOEKS AND DIRECTORS. Sec. 204. Fraudulent use of names in prospectuses, etc. Sec. 205. Same — Falsely indicating person as corporate officer. Sec. 206. Frauds and misconduct of directors. Sec. 207. Frauds in keeping accounts, etc. Sec. 208. Officer of corporation publishing false reports of its condition. Sec. 208a. Fraudulent reports concerning value of stock. Sec. 208b. Frauds by directors — Remedy. Sec. 209. Fraudulent insolvencies — What are. Sec. 210. Affairs of corporations— Knowledge of directors — Presumptions as to. Sec. 211. Presence of directors at meeting — Presumed assent to proceedings. Sec. 212. Absence of director from meeting— Assent to proceedings— When presumed. Sec. 213 Notice of application forinjimction — Service upon director — Failure to disclose. Sec. 214. Foreign corporations. Sec. 215. Term "director" defined. Sec. 198. Directors and Officers of Corporation— Mis- conduct of— Action for.— An action may be main- tained against one or more trustees, directors, managers, or other officers of a corporatjion, to procure a judgment for the following purposes, or so much thereof as the case requires : 1. Compelling the defendants to account for their official conduct, in the management and disposition of the funds and property, committed to their charge. 2. Compelling them to pay to the corporation, which they represent, or to its creditors, any money, and the value of any property, which they have acquired for themselves, or transferred to others, or lost or wasted, by a violation of their duties. 3. Suspeading a defendant from exercising his office, where it appears that he abused his trust. 4. Removing a defendant from his office, upon proof or conviction of misconduct, and directing a new election to be held by the body or board, duly authorized to hold the same, in order to supply the 32' ' POWER OF EQUITY OVBK COKPOBATION. 499f vacancy created by the removal ; or, where there is no such body or board, or where all the members thereof are removed, directing the removal to be reported to the governor, who may, with the advice and consent of the senate, fill the vacancies. 5. Setting aside an alienation of property, made by one or more trustees, directors, managers or other oflScers of a corporation, contrary to a provi- sion of law, or for a purpose foreign to the lawful business and objects of the corporation, where the alienee knew the purpose of the alienation. 6. Kestraining and preventing such an alienation, where it is threatened, or where there is good reason to apprehend that it will be made.^ Sec. 198a. Same— Power of equity over.— It has been said that a court of equity has no power to interfere with the chartered rights and franchises of a corporation at common law,^ and it is well settled that a court of equity has no jurisdiction when the suit is by information on behalf of the state for the pur- pose of procuring a judgment of ouster, of inflicting punish- ment or enforcing forfeiture,^ because the power to dissolve a corporation for cause is legal and not equitable.* Neither 1 N. Y. Code Civ. Proc, § ItSl. X. J. Eq. (1 Saxt.) 369, 377 (1831); 2 Attomey-Greneral v. Bank of s. c. 22 Am. Dec. 526. Chenango, Hopk. Ch. (H. Y.) 598 * Verplanckv. Mercantile Ins. Co., (1826) ; Attorney-General v. Bank 1 Edw. Ch. (N. Y.) 88 (1831); s. c. of Niagara, Hopk. Ch. (H. Y.) 354 2 Paige Ch. (N. Y.) 438 ; Attorney- (1825) ; Hodges v. New England General v. Bank of Chenango, Hopk. Screw Co., 1 E. I. 352 (1850); s. c. Ch. (N. Y.) 598 (1826) ; Attorney- 53 Am. Dec. 624, 633. General v. Bank of Niagara, Hopk. » Attorney-General v. Utica Ins. Ch. (N.Y.) 854 (1825); Sleev. Bloom, Co.,2 Johns. Ch. (N. Y.)871 (1817); 5 Johns. Ch. (N. Y.) 381 (1821);, Jersey City Gas Co. v. Dwight, 29 Attorney-General v. Utica Ins. Co., N. J. Eq. (2 Stew.) 250 (1878). See 2 Johns. Ch. (N. Y.) 371 (1817); Msher v. World Mutual Life Ins. Co. , Mann v. Pentz, 2 Sandf . Ch. (N. Y. ) 47 How. (N. Y.) Pr. 452 (1873); At- 266 (1845); Cady v. Centreville Knit toitiey-General V. Tudor Ice Co., 104 Goods Manuf. Co., 48 Mich. 135 Mass. 239 (1870); s. c. 6 Am. Eep. (1882). See Attorney-General v. 227; Attorney-General v. Stevens,. 1 Bank of Michigan, Harr. Ch. (Mich.) 315 (1843). -"500 EXTENT OF POWER OP COUET OVEE. 'does the jurisdiction of a court of equity extend tor the se- questration of the property of a corporation by means of a receiver, or to the winding up of its affairs, or to the control •or restraint of the usurpation of franchises by corporate 'bodies or by persons claiming, without right, to exercise cor- ■porate powers.^ But it is thought that a court of equity has a, common law power to compel trustees to execate their trusts, and may remove them if necessary. This is- true in- dependent of statutory provisions.^ It is thought that it can in no instance be the province of a court to superintend the business of a corporatiom with a view to measure the degree of care, industry and skill to be- required of, or exercised by, the directors or other officers or agents of the corporation ;^ and that a court will not interfere to review or correct the proceedings of directors or trustees of a corporation on the ground of fraud or mismanagementj except in tliose cases where there is cause shown for the dis- placement of the officers or for a final winding up of the cor- porate affairs. Courts of equity have no common law jurist diction or power over corporate bodies, for the purpose of removing their officers, restraining their operations, or winding up their concerns ; but this power is given by statute in many of the states ; and, in the absence of such special legislative grant, the charter privileges of corporations can only be taken by direct proceedings through the usual form of scire facias or proceedings in the nature of quo warranto,* regularly pros- «cuted in a court of law.® Equity will not grant relief where there is a plain, speedy, 1 United States Trust Co. t. New 296 (1832) ; Eniskem v. Lutheran Tork W. S. & B. R. Co., 101 N. Y. Churclies, etc., 1 Sandf. Oh. (N. T.) 478 (1886) ; Aliomey-General v. 439 (1844). Bank of Niagara, Hopk. Ch. (N. T.) ' Hedges v. Paquett, 3 Greg. 77 354 (1825) ; Attorney-General v. 80 (1869). Utica Ins. Co., 2 Johns. Ch. (N. T.) * See ante, § 162f. 371 (1817). 6 Treadwell v. SaUsbuiy Manuf. 2 Bowden v. McLeod, 1 Edw. Ch. Co., 73 Mass. (7 Gray) 393 (1856); (N. T.) 588 (1833); Baptist Church 8. c. 66 Am. Dec. 490; Bayless v, v. WithereU, 3 Paige Ch. (N. T.) Onie,lFreem. Ch. (Miss.) 173 (1841). ALLEGATION IN COMPLAINT — DEMAND. 501 and adequate remedy at law.^ It is only where the common law remedies are inadequate that chancery will acquire juris- diction.2 Sec. 198b — Same— Complaint— Demand.— A complaint will bs' bad if the grievances complained of are alleged to have been committed in part by the want of care and attention, and in part by the corrupt and wilful mismanagement of the defend- ants.3 And it seems that in a declaration charging the directors with having squandered the funds of a moneyed institution, it should be averred of what the funds, credits, and effects of the company consisted.* Where the treasurer of a corporation receives money be- longing to the corporation and asserts rights thereof inconsis- tent to the rights of the corporation to demand the same, and makes charges in the corporate books in extinguishment of his obligation to pay over the money to the corporation, a demand is not necessary before suit brought by the corporac tion to recover the money.® Sec. 198c. Same— Restraint of trustees.— It seems that a court of chancery will not interfere to restrain persons, claiming to be the rightful trustees of a corporation, from acting as such, upon the ground that they have not been duly elected; and that the remedy of the corporation to contest the validity of the election of such trustees is by an application to the supreme court.^ Where three qr four trustees, the . pastor and sexton of a corporation, formed under the New York Statute,^ conspired to change the ecclesiastical connection of such corporation and divert its temporalities to another denomination, the 1 DeWitt T. Hays, 2 Cal. 463 » Cunningham v. Pell, 5 Paige Ch. (1852); s. c. 56 Am. Dec. 352; Dog- (N. T.) 607 (1836). gett V. Hart, 5 Fla. 215 (1853) s. c. * Cunningham v. Pell, 5 Paige 58 Am. Dec. 464; Andrews v. Sulli- Ch. (N. Y.) 607 (18.36). van, 7 111. (2 Gilm.) 327 (1845); s. c. ^ East New York & J. E. Co. v. 43 Am. Dec. 53; Eedmond v. Dick- Elmore, 5 Hun (N. Y.) 214 (1875.) erson, 9 N. J. Eq. (1 Stockt.) 507 ^ Mickles v. Rochester City Bank, (1853); s. c. 59 Am. Dec. 418. 11 Paige Ch. (N. Y.) 118 (1844). " TreadweU v. Salisbury Manuf. ' L. 1813, c. 60. Co., 73 Mass. (7 Gray) 393 (1856) 8. c. 66 Am. Dec. 690. 502 EESPONSIBILITY OP OFPICEES. court held that the one loyal trustee may bring action in the name of the corporation to restrain such diversion.^ Sec. 198d. Same — Responsibility of officers. — Directors who wilfully abuse their trust, whereby a loss is sustained, or use funds for unauthorized purposes, as stock speculations, are liable to make good the loss, independent of statute.^ Also for loss by gross negligence.^ Directors are not liable for breach of fidelity by subordinates appointed by them, unless they have knowledge of bad character * ; they are liable only for neglect of ordinary care in the selection of such subor- dinates and in the management of the concerns of the corpo- ration.^ If officers in good faith assume to exercise banking powers, though they are unwarranted, it will render them liable for losses in doing so.® In a corporation's action against directors for damages arising from violations of duty, no laches short of the statute of limitation is a bar.^ Trustees who audit a bill in favor of one of their number, whose presence is necessary to constitute the quorum, are liable to stockholders.^ The executive committee of a joint stock company cannot vote themselves money in addition to the regular compen- sation for past extra services, nor in consideration of their retirement; and when they do so a receiver will be appointed to recover such money.® Sec. 198e. Same — Suspension of Corporation. — The suspen- sion of a corporation should not be ordered except upon clear ^ First Keformed Pres. Cliiircli v. ^ Scott v. Depeyster, 1 Edw. Ch. Bowden, 16 X. T. Week. Dig. SST (N. Y.) 513 (1832). (1883). Sees. c. lOAbb. (IT. T.)!^. C. « Casserly v. Manners, 9 Hiin 1, and 14 Abb. (1!^ Y.) N. C. 356. (N. Y.) 695 (1877). 2 Cunningham v. Pell, 5 Paige Cb. ' Ilion Bank v. Carver, 31 Barb. (N. Y.) 607 (1836) ; Robinson v. (N. Y.) 230 (1857.) Smith, 3 Paige Ch. (N. Y.) 222 « Butts v. Wood, 37 K. Y. 317 (1832); s. c. 24 Am. Dec. 212. (1867), affirming 38 Barb. (N. Y.) 8 Robinson v. Smith, 3 Paige Ch., 181. (N. Y.) 222 (1832). » Blatehford v. Ross, 5 Abb. (N. 4 Scott V. Depeyster, 1 Edw. Ch. Y.) Pr. N. S. 434 (1869) ; s. C. 54 (N. Y.) 513 (1832). Barb. (N. Y.) 42. WHO TO BRING ACTION. 503 proof of misconduct ; ^ and sucli an order should not be granted before trial and without notice, except in cases of urgent necessity .^ Sec. 198f. Same— Visitorial powers— The code does not divest or impair any visitorial power over a corporation which is vested by statute in a corporate body or public officer.^ A court of equity has no visitorial powers over corporations, except what is conferred by statute.* The court can only interfere with a corporation, or its officers, on some of the grounds specified in the statute.^ Sec. 199. Same— By whom action to Ibe brought. — An action may be brought, as prescribed in the last sec- tion, by the attorney-general in behalf of the people of the state ; or except where the action is brought for the purpose specified in subdivision third and fourth of that section, by a creditor of the corpora- tion, or by a trustee, director, manager, or other officer of the corporation, having a general superin- intendence of its concerns.^ Sec. 199a. Same — Action for fraudulent mismanagement. — An action may be maintained to recover for fraudulent misman- agement.'^ Where there has been a waste or misapplication of the corporate funds by the officers or agents of the corpora- tion, a suit to compel them to account for the loss should be in the name of the corporation, unless it appears that the directors of the corporation refuse to prosecute such suit, or the present directors of the company are the parties who have 1 Kamsey v. Erie R. Co., 7 Abb. (N. T.) 127 (1837) ; Verplanck v. (N. Y.) Pr. N. S. 156 (1869); s. c. Mercantile Ins. Co., 1 Edw. Ch. 38 How. (N. Y.) Pr. 193. (N. Y.) 84 (1831). 2 Eamsey v. Erie E. Co., 7 Abb. f' N. Y. Code Civ. Proc. § 1782. (N. Y.) Pr. N. S. 156 (1869); s. c. ' Cazeaux v. Mali, 25 Barb. (K. Y.) 38 How. (N. Y.) Pr. 193. 578 (1857), affirming 15 How. (N. Y.) > Code Civ. Proc, § 1783. Pr. 347, approved in Bruff v. Mali, * Belmont v. Erie R. Co. , 52 Barb. 36 N. Y. 200 (1867) ; 34 How. (N. Y.) (N. Y.) 637 (1869). Pr. 338. * Ferris v. Strong, 3 Edw. Ch. 604 ACTION FOK FEAUDULENT MISMANAGEMENT. made themselves answerable for the loss.^ An action may be maintained by a stockholder to prevent the misappropria- tion of the funds of a corporation. ^ An action under section 199 by one director to compel his fellow directors to account, will not prevent an action for the same purpose for a suspension and removal of all including the plaintiff in the first action from being brought by the attorney-general.^ Sec. 199b. Same— Parties to the corporation is a necessary party — Action affecting its mismanagement. — The corporation must be made a party to a proceeding to set aside an election of trustees ; * and where it is sought to remove the trustees of a corporation, they must be made parties to the action.^ An action against the officers of a corporation for mis- appropriation must be brought in the name of the corpora- tion, unless it refuses ; and, in case of refusal, a stockholder may sue for all, but the corporation must be made a defend- ant.* And in a suit by a stockholder to recover from direct- ors his share of his damages due to the corporation by the embezzlement of its assets, the corporation must be a party.' In those cases, however, where no personal claim is made against the directors, they should not be made parties.* Sec. 199c. Same— Stockholder's action.— A stockholder may maintain a suit in behalf of himself and others to set aside ' Robinson v. Smith, 3 Paige Ch. 272, affirming .52 How. (N. Y.) Pr. fN". T.) 222 (1832); s. c. 24 Am. Dec. 58; 49 How. (N. T.) Pr. "79; Taylor 212. V. Earle, 8 Hun (N. T.) 1 (1876)) 2 Carpenter v. New York & N. H. O'Brien v. O'Connell, 7 Hun (N. Y. ; B. Co., 5 Abb. (N. Y.) Pr. 277 (1857). 228 (1876); Gray v. New York& Va. 3 Eeeler v. Brooklyn Elevated E. Steamship Co., 3 Hun (N. Y.) .383 Co., 9 Abb. (N. J.) N. C. 166 (1880); (1875). People V. Bruff, 9 Abb. (N. Y.) N. ' Gardiner v. Pollard, 10 Bosw. C. 153 (1880). (N. Y.) 674 (1863); Wells v. Jewett, * Matter of Pioneer Paper Co., 36 11 How. (N. Y.) 242 (1855). See How. (N. Y.) Pr. 102 (1863). Smith v. Consol. Stage Co., 18 Abb. 5 Eeid V. The Evergreens, 21 How. (N. Y.) Pr. 423 (1865). (N. Y.) Pr. 319(1861). s Allen v. New Jersey Southern 6 Greaves v. Gouge, 69 N. Y. 154 R. Co., 49 How. (N. Y.)Pr. 14(1875.V. (1877); s. c. 54 How. (N. Y.) Pr. ACTION BY CKEDITOE. 505 a fraudulent proceeding of the directors ; ^ but a stockholder cannot sue a portion of the directors for negligence and mis- conduct, whereby the assets of the corporation are wasted, without making the other stockholders parties, or suing for all.2 Where a stockholder brings an action in behalf of himself and all the other stockholders, against the trustee and the corporation, alleging that the trustee has converted its money and property to his own use and the corporation declines, upon application of the plaintiff, to bring an action for its recovery, and is made a defendant, it is in proper form, although no other damage is alleged as accruing to the plain- tiff. The decree, if the cause goes to final judgment, will adequately protect all interested, where such an action is properly brought.^ A third person who combined with the directors cannot properly be made a defendant in a stockholder's action to charge the directors of a corporation for embezzlement of its assets.* Sec. 199d. Same — Action of Creditor— Meaning of term, — If in any cas6 a creditor can maintain such an action, he must state in his complaint the nature of his claims, when and how they arose, and the amount due; he should also demand payment before bringing suit.^ A creditor cannot maintain an action against creditors on the ground that their action has caused the insolvency of the corporation ; ® and a creditor at large of a corporation cannot maintain an action to have it dissolved on the ground of insolvency, and ta compel its trustees, directors, and oi3Bcers to make good the losses which it has sustained by reason of their negligence and mismanagement." 1 Butts V. Wood, 38 Barb. (K. T.) * Gardiner v. Pollard, 10 Bosw. 181 (1862); s. c. affirmed 37 N. Y. (N. T.) 674 (1863). 317. 5 Ranisey v. Erie R. Co., 7 Abb. 2 Smith V. Rathbun, 66 Barb. (N. (N. T,) Pr. N. S. 155 (1869); s. c. 38 T.) 402 (1873). , How. (N. T.) Pr. 193. * Carpenter v. Roberts, 56 How. ' Winter v. Baker, 34 How. (N. Y.) (K. Y.) Pr. 216; 8. c. 1 N. Y. Law Pr. 183 (1867). Bull. 2 (1878), ' Cole v. Knickerbocker Life Ins. 506 ACTION BY ATTORNEY-GENERAL. "Where the property of a corporation has been divided among the stockholders, a judgment creditor may maintain an action against a stockholder, to reach what he received. He need not sue in behalf of all, nor make all the stock- holders parties.^ « It is thought that the term " creditor," as used in this section, means a judgment creditor, and not a creditor at large.^ Sec. 199e. Same— Action by attorney-general. — The attor- ney-general, on behalf of the people of the state, may main- tain an action "against one or more trustees, directors, man- agers, or other officers of a corporation to procure a judgment, ****** compelling the defendants to account for their cfBcial conduct in the management and disposition of the funds and property committed to their charge," and " com- pelling them to pay the corporation which they represent or its creditors, any money, and the value of any property which they have acquired to themselves, or transferred to others, or lost, or wasted, by a violation of their duties," and " suspending a defendant from exercising his office when it appears that he has abused his trust." ^ Officers of a cor- poration who have defrauded it cannot, by causing a suit to be begun by a confederate, and having another confederate appointed receiver prevent the attorney-general from bring- ing an action against them and the company, and having a receiver appointed.* It is not a valid objection to an action that it has been brought upon the relation of somebody, because the attorney- general is authorized by this section to bring, in behalf of the people, actions to compel officers of the corporation to account for their official misconduct in the management and Co., 23 Hun (N. Y.) 255 (1880); fol- How. (N. Y.) Pr. 342 (1883); Cole v. lowing, Belknai#v. North American Knickerbocker Life Ins. Co. , 23 Hun Xife Ins. Co., 11 Hun (N. Y.) 282 (N. Y.) 2.55 (1880); Belknap v. North (1877). American Life Ins. Co., 11 Hun (N. 1 Bartlett v Drew, 57 N. Y. 587 Y.) 282 (1877). (1874); affirming 60 Barb. (N. Y.) s People v. Brufe, 9 Abb. (N. T.) «48; 4 Lans. (N. Y.) 444; Hastings N. C. 153 (1880); s. c. 60 How. (N. V. Drew, 50 How. (N. Y.) Pr. 254 Y.) Pr. 1. <1874). i People v. Braff, 9 Abb. (N. Y.) 2 Paulsen v Van Steenbergh, 65 N. C. 153 (1880). FEATJD IN CONDUCTING COEPOEATION. 507 -disposition of the funds and property committed to their charge, and also to procure a judgment suspending them from ofiQce, where it appears that tliey have abused their trust.^ Sec. 200. Fraudnlent Management of and Frandnlent Insolvencies by Corporations— Frauds in Subscriptions for Stock of Corporations —A person who signs the name of a fictitious person to any subscription for, or agree- ment to take stock in any corporation, existing or pro- posed and a person who signs, to any subscriptions or agreement the name of any person, knowing that such person does not intend in good faith to comply with the terms thereof, or under any understanding or agree- ment, that the terms of such subscription or agree- ment are not to be complied with or enforced, is guilty of a misdemeanor .2 Sec. 201 Frauds in the Issue of Stock, Scrip, etc.— An officer, agent or person in the service of any joint- stock company, or corporation formed or existing under the laws of this state, or of the United States, or of any state or territory thereof, or of any foreign government or country, who willfully and knowingly, with intent to defraud either, 1. Sells, pledges or issues, or causes to be sold, pledged or issued, or signs or exctutes, or causes to be signed or executed, with intent to sell, pledge, or issue, or to cause to be sold, pledges or issued, any certificate or instrument purporting to be a certificate or evidence of the ownership of any share or shares of such company or corporation, or any bond or evidence of debt, or writing purporting to be a bond or evidence of debt of such company or corporation, without being 1 People V. Lowe, 47 Hun (N. Y.) " N. T. Penal Code, § 590. .577 (1888). 608 FRAUDULENT SALE OP SHAEES — LIABILITy. first thereto duly authorized by such company or corporation, or contrary to the charter or laws un- der which such corporation, or company exists, or in excess of the power of such company or corporation or of the limit imposed by law Or otherwise upon its powerto create or issue stock or evidence of debt, or, 2. Re-issues, sells, pledges or disposes of, or causes to be re-issued, sold, pledged or disposed of, any surrendered or cancelled certificates, or other evidence of the transfer or ownership of any such share or shares : Is punishable by imprisonment for not less than three years nor more than seven years, or by a fine not exceeding three thousand dollars, or by both.^ Sec. 302, Fraudulent Sale of Shares -Liability of Offi- cer, Agent, etc.— An officer, agent or other person em- ployed by any company or corporation existing under the laws of this state, or of any other state or territory of the United States, or of any foreign government, who willfully and with a design to defraud, sells, pledges or issues, or causes to be sold, pledged or is- sued, or signs or procures to be signed with intent to sell, pledge or issue, or to be sold, pledged or issued a false, forged or fraudulent paper, writing or instru- ment, being or purporting to be a scrip, or certificate or other evidence of the ownership or transfer of any share or shares of the capital stock of such company or corporation, or a bond or other evidence of debt of such company or corporation, or a certificate or other evidence of the ownership or of the transfer of any such bond or other evidence of debt, is guilty of for- 1 N. T. Penal Code, §591; L. 1855, c. 155, §§ 1, 2, FKAUDS IN ORGANIZATION. 509 gery in the third degree, and upon conviction, in addition to the punishment prescribed in this title for that offence, may also be sentenced to pay a fine not exceeding three thousand dollars.^ Sec. 203. Frauds in Organization of Corporation or In- crease of Capital.— An officer, agent or clerk of a cor- poration, or of persons proposing to organize a cor- poration, or to increase the capital stock of a cor- poration, who knowingly exhibits a false, forged or altered book, paper, voucher, security or other instru- ment of evidence to any public officer or board au- thorized by law to examine the organization of such corporation, or to investigate its aflFairs, or to allow an increase of its capital, with intent to deceive such officer or board in respect thereto, is punishable by imprisonment in a state prison not exceeding ten years and not less than three years .^ Sec. 204. Fraudulent Use of Names in Prospectuses, etc. — A person who without authority, subscribes the name of another to, or inserts the name of another in, and prospectus, circular or other advertisement or an- nouncement of any corporation or joint-stock associ- ation existing or intended to be formed, with intent to permit the same to be published, and thereby to lead persons to believe that the person whose name is so subscribed is an officer, agent, member or pro- moter of such corporation or association, is guilty of a misdemeanor.' Sec. 205. Same— Falsely Indicating Person as Corporate Officer.— The false making or forging of an instrument or writing, purporting to have been issued by or in » N. T. Penal Code, § 518. 1829, c. 94, § 29. ' N. r. Penal Code, § 592; see L. » N. Y. Penal Code, § 593. 510 FKATJDS AND MISCONDUCT OF DIEECTOES. behalf of a corporation or association, state or govern- ment, and bearing the pretended signature of any person, therein falsely indicated as an agent or oflScer of such corporation, is forgery in the same degree, as if that person were in truth such. oflSeer or agent of the corporation or association, state or government. Sec. 206. Frauds and Misconduct of Directors. — A director of a stock corporation, who concurs in any vote or act of the directors of such corporation, or any of them, by which it is intended, 1 . To make a dividend, except from the surplus pro- fits arising from the business of the corporation, and in the case and manner allowed by law ; or, 2. To divide, withdraw or in any manner pay to the stockholders, or any of them, any part of the capital stock of the corporation ; or to reduce such capital stock without the consent of the legislature ; or, 3. To discount or receive any note or other evi- dence of debt in payment of an installment of capital stock actually called in, and required to be paid, or with intent to provide the means of making such payment ; or, 4. To receive or discount any note or other evi- dence of debt with intent to enable any stockholder to withdraw any part of the money paid in by him on his stock ; or, 5. To apply any portion of the funds of such cor- poration, ex#ept surplus profits, directly or indirectly, to the purchase of shares of its own stock ; or, 6. To receive any such shares in payment or satis- faction of a debt due to such corporation ; or, 7. To receive in exchange for the shares, notes, 1 N. T. Penal Code, § 519. See L. 1855, c. 155. FKAUDS IN KEEPING ACCOUNTS. 51L bonds, or other evidence of debt of such corporation, shares of the capital stock or notes, bonds or other evi- dence of debt issued by any other stock corporation ; Is guilty of a misdemeanor.^ Sec, 207,Frauds in Keeping Accounts, etc— A director, officer or agent of any corporation or joint-stock as- sociation, who knowingly receives or possesses him- self of any property of such corporation or associa- tion, otherwise than in payment of a just demand, and with intent to defraud, omits to make, or to cause or direct to be made, a full and true entry thereof, in the books or accounts of such corporation or as- sociation, and a director, officer, agent or member of any corporation or joint-stock association, who, with intent to defraud, destroys, alters, mutilates, or falsifies any of the books, papers, writings or securi- ties belonging to such corporation or association, or makes or concurs in making any false entry, or omits or concurs in omitting to make any material entry in any book of accounts, or other record or document kept by such corporation or association, is punishable by imprisonment in a state prison not exceeding ten years, and not less than three years, or, by imprison- ment in a county jail not exceeding one year, or by a fine not exceeding five hundred dollars, or by both such fine and imprisonment.^ Sec. 208. OflBcer of Corporation Publishing False Re- ports of its Condition.— A director, officer or agent of any corporation or joint-stock association, who know- ingly concurs in making or publishing any written report, exhibit or statement of its affairs or pecuniary condition, containing a,ny material statement which 1 N. T. Penal Code, § 594. See ^ N. T. Penal Code, §602. See L, L. 1869, c. 742, § 7. 1829 c, 94, § 29; L. 1843, c. 218, § 6.. 5112 FRAUDULENT KEPOETS CONCEKNING STOCK. is false, other than such as are elsewhere, by this Code, specially made punishable, is guilty of a mis- ■demeanor.^ Sec. 208a. Fraudulent reports concerning value of stock. — A certificate of stock, issued upon the organization of a corpo- ration under the general laws of this state, is to be deemed as a representation, on the part of those issuing it, that the holder is entitled to an interest, proportionate to the whole stock, in a money capital, or in property equivalent substan- tially to a money capital, of the amount specified as the capital of the company. Parties who project and promulgate the scheme of a joint-stock company, 'cause the usual books to be opened, allow or cause the inscription of a person as owner of an interest to a definite amount and value therein, and issue certificates of stock therefor, when the capital has not been paid in fully and in good faith — and annex to the certificate a written power, authorizing the transfer at large by the party to whom the certifijcate is issued — who publish false statements, tending to produce the belief that the stock was at least of par value, and that the business had warranted successive dividends from profits, are liable directly in dam- ages in an action for deceit brought by an innocent party who, on the faith of the public representations and of the state- ments of the certificate, has purchased from third parties, and paid for shares of the stock.^ Sec. 208b. Fraud by directors — Remedy. — ^It seems, that there is no wrong or fraud which directors of a joint-stock com- pany, incorporated or otherwise, can commit which cannot be redressed by appropriate and adequate remedies.^ Sec. 209, Fraudulent Insolvencies— What are.— The Insolvency of a moneyed corporation is deemed fraud- ulent unless its affairs appear, upon investigation, to 1 N. Y. Penal Code, § 603. See L. 'Cross v. Sackett, 6 Abb. (N. T.) 18Y4, c. 440, §§ 1, 2. Pr. 248. (1858). 2 Cross V. Sackett, 6 Abb. (N. T.) Pr. 247. (1858). KNOWLEDGE OP DIKECTOKS — ^PRESUMPTIONS. 513 lave been administered fairly, legally, and with ihe same care and diligence that agents receiving I compensation for their service are bound by law to )bserve.^ Sec. 210. Affairs of Corporation— Knowledge of Direc- ors — Presumptions as to. — A director of a corporation )r joint- stock association must be deemed to have luch a knowledge of the affairs of the corporation or issociation as to enable him to determine whether my act, proceeding or omission of its directors, is a aolation of this chapter,^ Sec. 211. Presence of Directors at Meeting— Pre- lamed assent to proceedings. — A director of a corpo- ration, or joint-stock association, who is present at a neeting of the directors, at which any act, proceeding )r omission of such directors is in violation of this chapter occurs, must be deemed to concurred therein, mless he at the time causes or in writing requires, his iissent therefrom to be entered in the minutes of the iirectors.^ Sec. 212. Absence of Director from Meeting— Assent to ?roceeding8— When presumed. — A director of a corpo- ■ation, or joint-stock association although not present it a meeting of the directors, at which any act, pro- ieeding or omission of such directors, in violation of his chapter, occurs must be deemed to have con- iurred therein, if the facts constituting such violation ippear on the records or minutes of the proceedings )f the board of directors, and he remains a director )f the same company for six months thereafter, with- )ut causing, or in writing requiring, his dissent from 1 N. T. Penal Code, § 604. » N. Y. Penal Code, § 610. 2 N. T. Penal Code, § 609. So 514 usr JUNCTION — notice or application for. such illegality to be entered in the minutes of the directory.^ Sec. 213. Notice of application for injunction— Service upon directors— Failure to disclose.— A director, trustee or other officer of a joint-stock association or corpo- ration, upon whom a nottce of application for an in- juction aflFecting the property or business of such joint-stock association or corporation is served, who omits to disclose to the other directors, officers, or managers thereof, the fact of such service, and the time and place of such application, is guilty of a misdemeanor.'' Sec. 214. Foreign corporations.— It i s no defence to a prosecution for a violation of the provisions of this chapter, that the corporation was one created by the laws of another state, government or, country, if it carried on business, or kept an office therefor, within this state.^ Sec. 216. Term " Directors" defined.— The term " director," as used in this chapter, embraces any of the persons having by law the direction or manage- ment of the affairs of a corporation, by whatever name such persons are described in its charter, or are known in law.* ' N. T. Penal Code, § 611. » N. T. Penal Code, § 613. ^ N. T. Penal Code, § 612. See L. * N. T. Penal Code, § 614. 1870, c. 151, § 1. CHAPTER XIII. PROCEEDINGS FOR THE CONDEMNATION OF REAL PROPERTY. CONDEMNATION PROCEEDINGS — TAKING PRIVATE PROPERTY — PROCEEDINGS COMMENCED BY PETITION — CONTENTS^ NOTICE — SERVICE — APPEARANCE — ANSWER — CONTENTS AND VERIFICATION — TRIAL — JUDGMENT — CONTENTS — COMMISSIONERS — CONFIRMING REPORT — OFFER OF COM- PROMISE — ADDITIONAL ALLOWANCE — ENFORCING JUDG- MENT — WRIT OP ASSISTANCE — CONFIRMATION OF PROCEED- INGS — APPEAL — STAY OP PROCEEDINGS — NEW APPRAISAI^ — CONFLICTING CLAIMS — POSSESSION OP PROPERTY — GIVING SECURITY — NOTICE OF PENDENCY OF ACTION — PRACTICE. Sec. 216. Title of act— When acts takes effect. Sec. 217. Terms defined. Sec. 217a. Incorporeal hereditaments — Condemnation of. Sec. 218. When proceedings to be taken. Sec. 218a. Taking private property for public use — Condemnation of cor- porate property — Construction of statute. Sec. 219. Proceedings to be commenced by petition — What to contain. Sec. 219a. Jurisdiction to condemn — When right exercised — Petition. Sec. 220. Notice to be annexed to petition — Upon whom served. Sec. 221. Petition and notice — How served. Sec. 222. Appearance of defendant infant, idiot, lunatic or habitual drunkard. Sec. 223. Appearance of parties. •516 "WHEN ACT TAKES EFFECT. Sec. 223a. Same — Verification of pleadings— Appearance by attorney- Effect of. Sbc. 224. Answer — What to contain. Sec. 224a. Same — Non-performance of condition. Sec. 225. Petition and answer— Verification. Sec. 226. Trial of issues. Sec. 227. Provisions made applicable. Sec. 228. Judgment — What to contain — Costs — When to defendant. Sec. 228a. Same — Assent — Commissioners to assess damages — evidence. Sec. 229. Commissioners — Oath of office — Proceedings of — Compensation. Sec. 229a. Same— Power of commissioners— Kule for estimating damages. Sec. 230. Report — Confirming and setting aside — Deposit when payment. Sko. 230a. Same— Title— Setting aside award on technical grounds — Arbitrary exercise of power — Stultifying report — When court will not interfere. Sec. 231. Offer to compromise — Amount of costs — Additional allowance. Sec. 232, Judgment — How enforced — Delivery of possession of premises — Writ of assistance. Sec. 233. Abandonment of proceedings. Sec. 233a. Same — When proceedings may be abandoned — Confirmatioa of report. Sec. 234. Appeal from final order — Stay. Sec. 234a. Same— Objection to incorporation — Eight to appeal. Sec. 235. Appeal from judgment by plaintiff. Sec. 236. New appraisal — When granted. Sec. 236a. Same — Second report — Confirmation — Review. Sec. 237. Conflicting claimants. Sec. 237a. Same— Award to unknown owners — Tax title — Constitutional law. Sec. 238. Possession of property — Giving security. Sec. 239. Possession — When to be given immediately. Sec. 240. Pendency of action— Notice of to be filed. Sec. 241. Practice in cases not provided for. Sec. 242. Repealing clauses. Sec. 216. Title of Act— When Act takes Effect.— The last General Assembly ^ amended the Code of Civil Procedure by adding a new chapter thereto, regula- ting and cj^ntrolling the proceedings for the con- demnation of real property, and the proceedings for the sale of corporate real property .2 This act is to i L. 1890, c. 95. 2 N. Y. Code Civ. Proc, ch. 23, tits. I. and II., §§ 3375-3397. "WHAT PEOPEETY MAT BE CONDEMNED. 617 Tdg known as the condemnation law,^ and takes effect May first, one thousand eight hundred and ninety, but does not in any way affect proceedings com- menced before the act became a law.^ Sec. 317. Terms Defined.— The term " person," when used herein, includes a corporation, joint stock association, the state and a political division thereof, as well as a natural person ; the term "real prop- erty," any right, interest or easement therein or appurtenance thereto ; and the term " owner," all persons having any estate, interest, or easement in the property to be taken, or any lien, charge, or incumbrance thereon. The person instituting the proceedings shall be termed the plaintiff ; and the person against whom the proceeding is brought, the defendant.^ Sec. 217a. Incorporeal here d itaments — Condemnation of. — J- he right of a mill owner to use the waters of a stream as a pro- pelling power at his mill, is an incorporeal hereditament connected with the land, and may be acquired by a water- works company.* Sec. 218. When Proceedings to be Talien.— Whenever any person is authorized to acquire title to real property, for a public use by condemnation the pro- ceeding for that purpose shall betaken in the manner prescribed in this title.® Seo. 218a. Taking private property for public use— Condemna- tion of corporate property,— The propriety of taking private property for public use is not a judicial question, but one of political sovereignty, to be determined by the legislature, either directly or by delegating the power to public agents, INT Code Civ. Proc, § 3357. * Stamford Water Co. v. Stanley, 2 n! Y. Code Civ. Proc, §§ 3384- 39 Hun (N. Y.) 424 (1886). 3397. '" 6 N. Y. Code Civ. Proc. § 3359. a N. Y. Code Civ. Proc, § 3358. 518 PEOCEEDENGS FOE — HOW COMMENCED. proceeding in such a manner and form as it may prescribe.' Neither a private nor a municipal corporation can, under a general power to take lands for a public use, take from another corporation, having the like power, lands or prop- erty held by it for a public purpose pursuant to its charter.^ Sec. 218b. Same— Construction of statute.— Statutes delegating the right of eminent domain to railroad and other corpoi'ations, being in derogation of common right, are not to be extended by implication, and must be strictly complied with. Yet they are not to be construed so literally as to defeat the evident purposes of the legislature.^ Sec. 219, Proceedings to he Commenced by Petition— What to Contain.— The proceeding shall be instituted by the presentation of a petition by the plaintiff to the supreme court, setting forth the following facts : 1. His name, place of residence, and the business in which engaged ; if a corporation or joint stock association, whether foreign or domestic, its prin- cipal place of business within the state, the names and places of residence of its principal officers, and of its directors, trustees or board of managers, as the case may be, and the object or purpose of its incor- poration or association ; if a political division of the state, the names and places of residence of its prin- cipal officers ; and if the state, the name and place of residence of the officer acting in its behalf in the proceeding. 2. A specific description of the property to be condemned^, and its location, by metes and bounds, with reasonable certainty. 3. The public use for which the property is re- 1 People ex rel. Herrick v. Smith, Prospect Park & C. I. R. Co v 21 N". T. 595 (1860). Williamson, 91 N. Y. 552 (1883). 2 Matter of Kocliester Water Com- » jn jg j^g^ York & H R E Co missloners, 66 N. Y., 413 (1876). See v. Kip, 46 N. Y., 546 (1871). PETITION — WHAT TO CONTAIN. 519 quired, and a concise statement of the facts showing the necessity of its acquisition for such use. 4. The names and places of residence of the owners of the property ; if an infant, the name and place of residence of his general guardian, if he has one ; if not, the name and place of residence of the person with whom he resides ; if a lunatic, idiot, or habitual drunkard, the name and place of residence of his committee or trustee, if he has one ; if not, the name and place of residence of the person with ■whom he resides. If a non-resident, having an agent or attorney residing in the state authorized to contract for the sale of the property, the name and place of residence of such agent or attorney ; if the name or place of residence of any owner cannot after diligent inquiry be ascertained, it may be so stated "with a specific statement of the extent of the inquiry which has been made. 5. That the plaintiff has been unable to agree with the owner of the property for its purchase, and the reason of such inability. 6. The value of the property to be condemned. 7. A statement that it is the intention of the plaintiff, in good faith, to complete the work or im- provement, for which the property is to be con- demned ; and that all the preliminary steps required by law have been taken to entitle him to institute the proceeding. 8. A demand for relief, that it may be adjudged that the public use requires the condemnation of the real property described, and that the plaintiff is en- titled to take and hold such property for the public use specified, upon making compensation therefor, and that commissioners of appraisal be appointed to 520 JURISDICTION TO CONDEMN. ascertain the compensation to be made to the own- ers for the property so taken. ^ Sec. 219a. Jurisdiction to condemn — When right exercised — Petition.— When private property is to be taken for public purposes, facts necessary to give the court or officer jurisdic- tion must appear in the petition, for it is upon that alone that jurisdiction depends.^ The supreme court has the power to entertain a proceeding on the petition of a railway, to condemn lands of the state under water .^ It is no objection to proceedings under the act that there are other lands in the same vicinitj' equally well adapted for the purposes which possibly might be acquired by purchase.* The reasons of the inability to agree must be stated, that the court may deter- mine their sufficiency, and also that the owner of the land may negative or disprove them, as the reasons why agree- ment cannot be had may be various, and a petition which fails to state the reasons for disagreement is defective.® The exercise of the power being in derogation of individual right, allowed only when the necessity clearly appears, and the proposed use is clearly embraced within the legitimate objects of the power.^ A defective description cannot be remedied by reference to a description in a deed. Extreme accuracy is essential for the protection of the rights of all the parties,, and a failure to comply with the statute must lead to difficulty and embarrassment.' In Matter of Suburban Kapid Transit Co.,^ it was held,. that the court had power to amend a defect in the petition by proof presented upon the hearing. One petition to acquire the land of several owners is but one proceeding, and requires one appeal and one allowance of costs.^ In order to- 1 N. T. Code Cif. Proc. § 3360. « In re Staten Island Kapid Transit 2 Matter of Marsh, 71 N. T., 315 Co., 103 N. T. 251 (1886). (1877), reVg 10 Hun (N. Y.) 49. ' Matter of New York C. & H. E. ' Matter of New York Cable Co., E. K. Co., 70 N. Y. 191 (1877). 104 N. Y. 1, 43 (1887). « 38 Hun (N. Y.) 553 (1886). * In re New York & H. E. E. Co. " Matter of Prospect Park & C. I. V. Kip, 46 N. Y. 546 (1871). E. Co., 67 N. Y., 371 (1876), affirming; 6 Matter of Marsh, 71 N. Y. 316 8 Hun (N. Y.) 30. (1877). PETITION AND NOTICE. 521 sustain proceedings by wbicli a body corporate claims the power to exercise the right of eminent domain, it is not suf- ficient that it be a corporation de facto. It must be a corpo- ration de jure} If the petition does not show the facts required by statute to be stated, the objection may be dis- posed of before trial.^ The owner is entitled to notice and hearing.3 Sec. 220. Notice to be Annexed to Petition.— Upon whom Served.— There must be annexed to the peti- tion a notice of the time and place at which it will be presented to a special term of the supreme court, held in the judicial district where the prop- erty or some portion of it is situated, and a copy of the petition and notice must be served upon all the owners of the property at least eight days prior to its presentation.* Sec. 221. Petition and Notice— How Served.— Service of the petition and notice must be made in the same manner as the service of a summons in an action in the supreme court is required to be made, and all the provisions of articles one and two of title one of chapter five of this act, which relate to the service of a summons, either personally or in any other way, and the mode of proving service, shall apply to the service of the petition, and notice. If the defendant has an agent or attorney residing in this- state, authorized to contract for the sale of the real property described in the petition, service upon such agent or attorney will be sufiicient service upon such defendant. In case the defendant is an infant of the 1 Matter of New York Cable Co., * N. Y. Code Civ. Proc, § 3361. 104 N. Y. 1, 43 (1887). All notices and hearings that may " Matter of New York W. S. & B. tend to give the party to be affected R. Co., 64 How. (N. Y.) Pr. 217 any semblance of benefit must be (1882). carefully observed. People ex reL " Stuart v. Palmer, 74 N. Y. 183 Odle v. Kniskern, 54 N. Y., 52; (1878). (1873). 522 APPBAKANCE OF PARTIES. age of fourteen years or upwards, a copy of the petition and notice shall also be served upon his general guardian, if he has one ; if not, upon the person with whom he resides.^ Sec. 222. Appearance of Defendant Infant, Idiot. Lunatic or Habitual Drunkard.— If a defendant is an infant, idiot, lunatic or habitual drunkard, it shall be the duty of his general guardian, committee or trustee, if he has one, to appear for him upon the presentation of the petition and attend to his inter- ests ; and in case he has none, or in case his general guardian, committee or trustee fails to appear for him, the court shall, upon the presentation of the petition and notice, with proof of service, without further notice, appoint a guardian ad litem for such defendant, whose duty it shall be to appear for him and attend to his interests in the proceeding, and, if deemed necessary to protect his rights, the court may require a general guardian, committee or trus- tee, or a guardian ad litem to give security in such sum and with such sureties as the court may approve. If a service other than personal has been made upon any defendant, and he does not appear upon the presentation of the petition, the court shall appoint some competent attorney to appear for him and attend to his interests in the proceeding.^ Sec. 223. Appearance of Parties.— The provisions of law and of ^he rules and practice of the court, relat- ing to the appearance of parties in person or by attorney in actions in the supreme court, shall apply to the proceeding from and after the service of the petition, and all subsequent orders, notices and 1 N. T. Code Civ. Proc, § 3362. » N. T. Code Civ. Proc, § 3363. WHAT ANSWER TO CONTAIN. 523 papers may be served upon the attorney appearing and upon a guardian ad litem, in the same manner and with the same effect as the service of papers in an action in the supreme court may be made.^ Seb. 223a. Same — Verification of pleadings — Appearance by attorney— Effect of.— A party, by putting in a general appear- ance and proceeding without objection, submits himself to the jurisdiction of the court, and cannot afterward raise objection to the sufficiency of the verification to the petition. ^ If the petition does not state the facts required in the peti- tion to be stated, an objection in that regard can be raised preliminarily in effect by way of demurrer, and should be disposed of before proceeding to the merits.^ The appear- ance of an attorney for the landowner, when a petition for the appointment of commissioners is brought on for hearing, gives jurisdiction, and cures an omission from the petition, such as the omission to state the residence of owners.* Sec. 224. Answer— What to Contain.— Upon presen- tation of the petition and notice, with proof of service thereof, an owner of the property may appear and interpose an answer, which must contain a general or specific denial of each material allegation of the petition controverted by him, or of any knowledge or information thereof sufiicient to form a belief, or a statement of new matter constituting a defense to the proceeding.® Sec. 224a. Same — ITon-performance of conditions in charter. — If by non-performance of a condition of its charter, the cor- poration has forfeited or lost its corporate rights and powers the fact may be averred by any one whose land or property 1 N. Y. Code Civ. Proc, § 3364. * Matter of Rochester, Homells- 2 Matter of New York L. & West. ville, etc., R. Co., 19 Abb. (N. Y.) R. Co., 33 Hun (N. Y.) 148 (1884). N. C, 421 (1887). 8 Matter of New York W. S. & B. » N. Y. Code Civ. Proc, § 3365. R. Co., 64 How. (N. Y.) Pr. 217 <1882). 524 VERIFICATION OF PLEADINGS. is sought to be appropriated in answer to the application.^ It is well settled in this state, that the mere fact that the land proposed to be taken for a public use is not needed for the present and immediate purpose of the petitioning party, is not necessarily a defence to a proceeding to condemn it.^ Sec. 225. Petition and Answer— Teriflcation.— A peti- tion or answer must be verified, and the provisions of this act relating to the form and contents of the verification of pleadings in courts of record, and the persons by whom it may be made, shall apply to the verification.^ Sec. 226. Trial of Issues.— The court shall try any issue raised by the petition and answer at such time and place as it may direct, or it may order the same to be referred to a referee to hear and determine, and upon such trial the court or referee shall file a decision in writing, or deliver the same to the attor- ney for the prevailing party, within twenty days after the final submission of the proofs and allega- tions of the parties, and the provisions of this act relating to the form and contents of decisions upon the trial of issues of fact by the court or a referee, and to making and filing exceptions thereto, and the making and settlement of a case for the review thereof upon appeal, and to the proceedings which may be had in case such decision is not filed or delivered within the time herein required, and to the powers of the court and referee upon such trial, shall be applicable to a trial and decision under this title. Sec. 227. Provisions made Applicable.— The provi- 1 Matter of Brooklyn, W. & N. K. ' N. T. Code Civ. Proc., 3366. Co., 72 N. Y. 245 (1878). * N. T. Code Civ. Proc, § 3367. A 2 Matter of Stateu Island Eapid denial of the intention of a railroad Transit Co., 103 N. Y. 251 (1886). company to, in good faith, construct JUDGMENT — WHAT TO CONTAIN. 525 sions of title one of chapter eight of this act shall also apply to proceedings had under this title. ^ Sec. 228. Judgment— What to Contain— Costs— When to Defendant— Commissioners.— Judgment shall be en- tered pursuant to the direction of the court or referee in the decision filed. If in favor of the defendant, the petition shall be dismissed with costs, to be taxed by the clerk at the same rates as are allowed of course to a defendant prevailing in an action in the supreme court, including the allowances for pro- ceedings before and after notice of trial. If the ■decision is in favor of the plaintiff, or if no answer has been interposed and it appears from the petition that he is entitled to the relief demanded, judgment ishall be entered, adjudging that the condemnation of the real property described is necessary for the public use, and that the plaintiff is entitled to take and hold the property for the public use specified, upon making compensation therefor, and the court shall thereupon appoint three disinterested and competent freeholders, residents of the county where the real property or some part of it is situated or of some adjoining county, commissioners to ascertain the compensation to be made to the own- ers for the property to be taken for the public use specified, and fix the time and place for the first meeting of the commissioners. If a trial has been had, at least eight days notice of such appointment must be given to all defendants who have appeared.^ and finish its road, made by the owner company. Matter of Staten Island of the property sought to be talien, Rapid Transit E., 20 K. Y. Week, raises an issue for trial before com- Dig. 15 (1884). mlssioners can be appointed, and l N. Y. Code Civ. Proc, § .3368. puts the burden of proof upon the ^ N. Y. Code Civ. Proc, § 3369. 626 COMMISSIONERS — OATH OF OrPXCB. Sec. 228a. Same — Assent — Commissioners to assess damages — Evidence, etc. — Inability to procure the assent of the land- hohlers is the only pre-requisite under the statute to the appointment of commissioners. An application for the appointment of commissioners should not be denied because otiier companies having coincident routes have refused their ciinseiit.i Where commissioners were appointed on consent of parties, and it subsequently appeared one of them was not a freeholder, it was held that, in the absence of allegations of improper conduct on his part, the court properly denied a motion, made by one of the parties who had consented to his appointment, to have the report set aside and a new commis- sioner appointed.^ The appointment of a son of a commis- sioner a station agent by the company pending the proceedings is ground for setting aside an appraisal.^ Sec. 229. Commissioners.— Oath of Office— Proceedings of— Compensation — The commissioners shall take and subscribe the constitutional oath of oflSce, Any of them may issue subpoenas and administer oaths to witnesses ; a majority of them may adjourn the pro- ceeding before them, from time to time, in their dis- cretion. Whenever they meet, except by appoint- ment of the court or pursua,nt to adjournment, they shall cause at least eight days notice of such meet- ing to be given to the defendants who have appeared, or their agents or attorneys. They shall view the premises described in the petition, and hear the proofs and allegations of the parties, and reduce the testimony taken by them, if any, to writing, and after the testimony in each case is closed, they, or a major- ity of them, ^1 beingpresent, shall, without unneces- sary delay, ascertain and determine the compensa- ' Matter of Thirty-fourth Street E. » New York W. S. & B. R. Co. v. Co., 102 N. T. 34.3 (1886). Townsend, 36 Hun (N. 1.) 630 2 New York W. S. & B. R. Co., 35 (1880). Hun (N. Y.) 575 (1885). POWBK OF COMMISSIONERS. 52T tion which ought justly to be made by the plaintiff to the owners of the property appraised by them ; and, in fixing the amount of such compensation, they shall not make any allowance or deduction on account of any real or supposed benefits which the owners may derive from the public use, for which the property is to be taken, or the construction of any proposed improvement connected with such public use. But in case the plaintiff is a railroad corporation and such real property shall belong to any other railroad corporation, the commissioners, on fixing the amount of such compensation, shall fix the same at its fair value for railroad purposes. They shall make a report of their proceedings to the supreme court with the minutes of the testimony taken by them, if any ; and they shall each be entitled to six dollars for services, for every day they are actually engaged in the performance of their duties and their necessary expenses, to be paid by the plaintiff.! Sec. 229a. Same — Power of commissioners — ^Rule for estimat- ing damages. — The commissioners have no power to make any awards for the loss of an established business located on the land taken, nor for machinery thereon as such, though an allowance for depreciation of its value by removal is proper.^ It is not error for the commissioners to receive and act upon testimony as to the value of the property for park purposes or villa sites.^ The corporation acquires an absolute right to the lands divested of any inchoate right of dower existing in the wife.* The commissioners should determine the compensa- 1 N. T. Code Civ. Proc, § 3370. ° Matter of Department of Public " Matter of Department of Public Parks, 53 Hun (N. T.) 280 (1889.) Parks, 53 Hun (N. Y.) 280 (1889). * Moore v. City of New York, 8 N. Y. 110 (1853). 528 ESTIMATING DAMAGES. tion to be made to a widow who has dower or life estate in lands taken ; ^ and also the compensation to be made to the mortgagee.^ The true inquiry is, what is the fair marketable value of the whole property ; what will be the fair marketable value of the property not taken ? The difference is the amount of the damages.^ An appraisal will not be set aside as excessive unless the excess is plain and palpable on the evidence.* The opinions of witnesses that the railroad will frighten horses, or the necessity of deviating the line of a turnpike, or the cost of diversion, or that a bridge ought to be built, or the amount of damages a turnpike company will sustain by reason of the crossing of its road, are said to be inadmissible.^ In Trustees of College Point v. Dennett,' it was held upon an appraisal of a pond that the measure of damages was not limited to its use as a mill or ice-pond, but the owner was entitled to receive its value for any use. The commissioners must appraise the land at its actual value ; they cannot make a reservation of easements and privileges to the owner.^ It is competent to show, where land is taken for a specific Tise, as a railroad, that the land not taken is depreciated in value by the use of the land taken, and if that depreciation consists in the imposition of expense upon the owner of such lands, what that expense will be.^ The owner should be awarded the market price of the land already taken, and in addition thereto the depreciation in the market value of the lands remaining, as compared with their 1 Matter of William Street, 19 ' 5 T. & C. (N. T.) (1874) 217; s Wend. (N. T.) 678 (1839). c. 2 Hun (N. Y.) 669. 2 Matter of John Street, 19 Wend. ' Hill v. Mohawk & H. R. Co., 7 (X. Y.) 659 (1839). N. Y. 152 (1852). But see, however, 8 Matter of NewnYork & L. W. E. Ex parte Hartford C. & E. Co., 65 Co. V. Arnot, 27 Hun (N. Y.) 151 How. (N. Y.) Pr. 133 (1883), where (1882). it is held that a company may petition * Matter of ISTew York L. & W. E. for the appraisement only of the land E. Co., 27 Hun (N. Y.) 116 (1882). required for its roads. 6 Troy & B. R. Co. v. Northern s Matter of Bloomfield, etc., Gas Turnpike Co., 16 Barb. (N. Y.) 100 L. Co. v. Calkins, 1 T. & C (N Y ) (1852). 549(1873). BULE FOB ASCERTAINING DAMAGES. 529 former market value.^ Tt is the duty of the commissioners to hear any and all evidence which would be competent in a court of law on similar questions.^ They are controlled by the established rules of evidence.^ In proceedings by a railroad corporation 'to acquire a right to lay its tracks in a street or highway, the fee of which is in the owner of the adjoining land, the proper compensation is first, the full value of the land taken; second, a fair and adequate compensation for all the injury the owner has sus- tained and will sustain by the making of the road over his land.* The amount of damages to be awarded to the tenant is the amount which the rental value exceed the rent reserved.^ The order in which the commissioners shall proceed is a matter left entirely in their discretion.® The party whose land is taken, and who claims damages therefor, has the right to the opening and closing argument in the proceedings.^ An error in the admission of evidence is not cured by the certificate of one of the commissioners that it did not affect the report.* Errors occurring in the report of testimony are subject to correction by such commissioners, as a proper judi- cial function, and within their province only:* Loss of business profits and good will are not substantial grounds for damages, nor are they to be considered in esti- mating the injury caused by the taking of land.^" When land 1 Matter of New Tork W. S. & B. « Albany Northern E. Co. v. Lan- E., 29 Hun (N. Y.) 609 (1883); to sing, 16 Barb. (N. T.) 68 (1852). ■the same effect, Matter of New Tork ' Matter of New York L. & W. R. W. S. & B. E. Co., 35 Hun (N. Y.) Co., 33 Hun (N. Y.) 148 (1884); 260 (1885) . affirmed without opinion 98 N. Y. 664. 2 Eochester & Syr. B. Co. v. Bud- ' Matter of New York L. & W. E. long, 6 How. (N. Y.) Pr. 467 (1851). Co., 29 Hun (N. Y.) 1 (1883). 3 Troy & B. R. Co., v. Northern ' Matter of New York W- S. & B. Turnpike Co., 16 Barb. (N. Y.) 100 E. Co., 33 Hun (N. Y.) 293 (1884). (1852). To the same effect, Matter of i" Troy & B. E. Co. v. Northern TJtica & C. E. Co., 56 Barb. (N. Y.) Turnpike Co., 16 Barb. (N. Y.) 100 456. (1852) ; to the same effect, Matter of 4 Henderson v. New York C. E. New York W. S. & B. E. Co., 35 R. Co., 78 N. Y. 423 (1879). Hun (N. T.) 633 (1885). 6 Matter of the City of Buffalo, 1 Sheld. (N. Y.) 408 (1874). 34 530 commissioners' keport. is taken, inconveniences from noise, smoke, etc., may be taken into consideration in estimating depreciation of bal- ance.^ In estimating the damages to which a lessee of premises used for a business purpose is entitled, the commissioners should consider the injury to the property as a whole ; the difference in value of the leasehold interest before and after the land is taken ; but the willingness of the lessor to lease another piece of land suitable for the same purpose is not admissible.^ Sec. 230. Report— Confirming and Setting Aside— Deposit when Payment.— Upon filing the report of the com- missioners, any party may move for its confirmation at a special term, held in the district where the prop- erty or some part of it is situated, upon notice to the other parties who have appeared, and upon such motion, the court may confirm the report, or may set it aside for irregularity, or for error of law in the proceedings before the commissioners, or upon the ground that the award is excessive or insuflficient. If the report is set aside, the court may direct a rehearing before the same commissioners, or may appoint new commissioners for that purpose, and the proceedings upon such rehearing shall be conducted in the manner prescribed for the original hearing, and the same proceedings shall be had for the con- firmation of the second report, as are herein pre- scribed for the confirmation of the first report. If the report is confirmed, the court shall enter a final order in th% proceeding, directing that compensa- tion shall be made to the owners of the property, pursuant to the determination of the commissioners, 1 Brooklyn Park Commissioners V. R. Co. v. Bell, 28 Hun (N. T.) 426. Armstrong, 45 N. T. 234 (1871). (1882). 2 Matter of New York W. S. & B. SETTING ASIDE KEPORT. 531 and that upon payment of such compensation, the plaintiflF shall be entitled to enter into the posses- sion of the property condemned, and take and hold it for the public use specified in the judgment. De- posit of the money to the credit of, or payable to the order of the owner, pursuant to the direction of the court, shall be deemed a payment within the pro- visions of this title. 1 Sec. 230a. Same — Title — Setting aside award on technical grounds — Arbitrary e:sercise of power — Stultifying report — When court will not interfere.— No title is acquired under proceed- ings to condemn lands for public use until the confirmation of the report of commissioners appointed to assess the dam- ages for the taking thereof .^ It is too late to raise objections, such as that the petition is not properly verified, or that it does not appear by the petition that the company has been unable to agree with the owner of the right of way for the purchase, etc., on motion for confirmation of the commission- er's report.^ The supreme court will not set aside an award for every technical error, where no injustice appears to have been done.* The court will not disturb an appraisal for technical errors, or unless the commissioners have clearly gone astray and disregarded legal principles.^ Where the petitioner has fairly made out a case establishing that the premises are nec- essary for its use, and the company has acted in good faith and exercised a reasonable discretion, the court will not interfere.® Where the commissioners awarded much less than the value of the property taken, according to the testimony of 1 N. T. Code Civ. Proc, § 3371. Turnpike Co., 16 Barb. (N. T.) 100 2 Matter of Common Council of (1852). Brooklyn, 5 Hun (N. Y.) 175 (1875). ^ Matter of New York L. & W. R. ' New York & Erie R. Go. v. Co. v. Amott, 27 Hun (N. Y.) 151 Corey, 5 How. (N..Y.) Pr. 177 (1850). (1882); to the sam effect New York * New York Cent. R. Co. v. Mar- W. S. & B. R. Co., 37 Hun (N. Y.) Tin, 11 N. Y. 276 (1854); citing 317 (1885). Troy & Boston R. Co. v. Northern ^ Matter of New York L. & W. R. Co., 35 Hun (N. Y.) 220 (1885). 532 AEBITEARY EXERCISE OF POWER. every witness put upon the stand, it was held an arbitrary exercise of power not justified by law.^ An order of court confirming the report of commissioners of appraisement of damages to owners for lands taken, will not give validity to proceedings void for want of jurisdiction.^ In case commissioners have filed their report, their power of amendment is gone, and a subsequent report has no valid- ity.^ The commissioners, upon application and order of court, may amend or correct their report so as to conform it to the state of facts as they exist. But they have no right at the time of such correction to hear proofs by claimants as to damages.* Where there has been a succession of appraisals in the same county, one report may embrace all the different parcels.* The report may be set aside where it appears that the com- missioners had talked privately with a person from whom they obtained information discrediting claimant's testimony, and the award to him was greatly inadequate, and that his neglect to oppose the confirmation of the report arose from neglect or misconduct of his attorney.* The default of an owner upon the hearing before commissioners may be excused by the supreme court on motion to confirm the report, and the report set aside and a new hearing directed.^ Upon the application to confirm a report, a commissioner who has signed such report will not be allowed to stultify himself by an affidavit that he signed it without reading it or hearing it read.^ The court must act solely on the report of the commissioners, and affidavits cannot be used to impeach or contradict it. The report must show that an error has 1 New York W. S. & B. R. Co. v. land, 6 How. (N". Y.) Pr. 238 (1851). Yates, 18 N.^Y. Week. Dig. 272 « Matter of New York C. R. Co., (1883). 15 Hun (N. Y.) 105 (1875). SeeViss- 2 Matter of Widening Carlton cher v. Hudson River R. Co., 15 Street 16 Hun (N. Y.) 497 (1879). Barb. (N. Y.) 37 (1853). ' People ex rel. Mann v. Mott, 60 ' Matter of New York L. & W. E. N. Y. 649 (1875). Co., 93 N. Y., 385 (1883). * New York & Erie R. Co. v. ^ Rochester & Genesee Valley R Corey, 5 How. (N. Y.) Pr. 177(1850). Co. v. Beckwith, 10 How. (N. Y.) 6 Troy & Rutland R. Co. v. Cleve- Pr. 168 (1854). OFFER OF COMPKOMISB. 533 been committed, or that injustice has been done, to enable the court to reverse or set aside the proceedings.^ Where the parties have agreed as to the principles on which the appraisal is to be conducted, the court cannot interfere.^ The right of the mortgagee of lands taken in condemnation proceedings to the amount of awards made to him as mort- gagee, is not taken away by his taking judgment in fore- closure without any abatement on account of the awards.^ The court will not review the judgment of the commissioners upon the facts, except in cases in which a gross inequality of values is developed, or the appraisal is made upon a wrong principle.* Sec. 231. Offer to Compromise— Amount of Costs- Additional Allowance.— In all cases where the owner is a resident, and not under legal disability to convey title to real property the plaintiff before service of his petition and notice may make a written offer to purchase the property at a specified price, which must within ten days thereafter be filed in the office of the clerk of the county where the property is situated ; and which can not be given in evidence before the commissioners, or considered by them. The owner may at the time of the presentation of the petition, or at any time previously, serve notice in writing of the acceptance of plaintiff's offer, and thereupon the plaintiff may, upon filing the petition, with proof of the making of the offer and its accept- ance, enter an order that, upon payment of the compensation agreed upon, he may enter into posses- sion of the real property described in the petition, and take and hold it for the public use therein 1 Rondout & Oswego K. Co. v. ^ Eodman v. City of Buffalo, 15 Field, 38 How. (N. Y.) Pr. l&T (1869). X. T. St. Eep., 583 (1888). 2 In re New York L. & W. R. Co., * Matter of Mayor, etc., of New 102 N. Y. 704 (1886). York, 99 N. T. 569 (1885) ; afTg 34 Hun (N. Y.) 441. 534 AMOUNT OP COSTS. specified. If the offer is not accepted, and the com- pensation awarded by the commissioners does not exceed the amount of the offer with interest from the time it was made, no costs shall be allowed to either party. If the compensation awarded shall exceed the amount of the offer with interest from the time it was made, or if no offer was made, the court shall, in the final order, direct that the defendant recover of the plaintiff the costs of the proceeding to be taxed by the clerk at the same rate as is allowed, of course, to the defendant when he is the prevailing party in an action in the supreme court, including the allowances for proceedings before and after notice of trial and the court may also grant an additional allowance of costs, not exceeding five per- centum upon the amount awarded. The court shall also direct in the final order what sum shall be paid to the general or special guardian, or committee or trustee of an infant, idiot, lunatic or habitual drunk- ard, or to an attorney appointed by the court to attend to the interests of any defendant upon whom other than personal service of the petition and notice may have been made, and who has not appeared, for costs, expenses and counsel fees, and by whom or out of what fund the same shall be paid. If a trial has been had, and all the issues determined in favor of the plaintiff, costs of the trial shall not be allowed to the defendant, but the plaintiff shall recover of any defenflant answering the costs of such trial caused by the interposition of the unsucessful de- fense, to be taxed by the clerk at the same rate as is allowed to the prevailing party for the trial of an action in the supreme court. ^ 1 N. T. Code Civ. Proc, § 3372. As to offer to purchase property ENFORCING JUDGMENT. 535 Sec. 232. Judgment— How Enforced— Delirery of Pos- session of Premises — Writ of Assistance to Issue. — Upon the entry of the final order, the same shall be attached to the judgment roll in the proceeding, and the amount directed to be paid, either as compensation to the owners, or for the costs or expenses of the proceeding, shall be docketed as a judgment against the person who is directed to pay the same, and it shall have all the force and effect of a money judg- ment in an action in the supreme court, and collection thereof may be enforced by execution and by the same proceedings as judgments for the recovery of money in the supreme court may be enforced under the provisions of this act^ When payment of the compensation awarded, and costs of the proceeding, if any has been made as directed in the final order, and a certified copy of such order has been served upon the owner, he shall, upon demand of the plaintiff, deliver possession thereof to him, and in case posses- sionis not delivered when demanded, the plaintiff may apply to the court without notice, unless the court shall require notice to be given, upon proof of such payment and of service of the copy order, and of the demand and non-compliance therewith, for a writ of assistance, and the court shall thereupon cause such writ to be issued, which shall be executed in the same manner as when issued in other cases for the delivery of possession of real property .^ Sec. 233. Abandonment of Proceeding.— Within thirty days after the entry of the final order the plaintiff may abandon the proceeding, by filing and serving a written notice of his determination to do so, by at a specified price and acceptance Procedure, §§ 736-740 both inclusive of same, see N. Y. Code of CivU ^N. T. Code Civ. Proc, § 3373. 536 APPEAL — STAY OF PEOCEEDINGS. filing fees and expenses of the commissioners, and the costs and expenses directed to be paid in such order ; and thereupon payment of the amount awarded for compensation shall not be enforced, but in such case the plaintiff shkll not renew pro- ceedings to acquire title to such lands or any part thereof without a tender or deposit in court of the- amount of the award and interest thereon.-' Sec. 233a. Same — When proceedings may be abandoned— Con- firmation of report.— A public body or public officers having the right of eminent domain for public purposes may be permitted to discontinue proceedings to acquire lands at anytime before any rights have become vested in the property owners.^ The confirmation of the report of commissioners, prevents the abandoning of the proceedings.^ Until the confirmation of the commissioners appointed to assess damages,, the court may allow a discontinuance of the proceedings.* Sec. 234. Appeal from Final Order.— Stay — Appeal may be taken to the general term of the supreme court from the final order, within the time provided for appeals from orders by title four of chapter twelve of this act ; and all the provisions of such chapter relating to appeals to the general term from orders of the special term shall apply to such appeals. Such appeal will bring up for review all the proceedings subsequent to the judgment, but the judgment and proceedings antecedent thereto may be reviewed on such appeal, if the appellant states in his notice that the same will be brought up for review, and excep- tions shall have been filed to the decision of the court or the referee, and a case or a case and excep- 1 N. T. Code Civ. Proc,, § 3374 « Matter of Rhinebeck & Conneo- 2 Matter of Washington Park, 56 ticut E. Co., 67 N. Y. 242 (1876). N. Y. 144 (1874). 4 Ex parte New York Syracuse B. & N. Y. Co., 4 Hun (N. Y.) 311 (1875), EIGHT OF APPEAL — "WAIVEK. 537 tions shall have been made, settled and allowed, as required by the provisions of this act, for the review of the trial of actions in the supreme jcourt without a jury. The proceedings of the plaintiff shall not be stayed upon such an appeal, except by order of the court, upon notice to him, and the appeal shall not affect his possession of the property taken, and the appeal of a defendant shall not be heard except on his stipulation not to disturb such possession.! Sec. 234a. Same— Objection to incorporation — Right to appeal. — The objection that a corporation seeking to condemn property under the right of eminent domain, has no legal existence, should be taken in proper time ; if not, the objec- tion cannot be raised on appeal to the court of appeals.^ Any person deeming himself aggrieved may appeal.^ An appeal lies to the court of appeals from an order of the general term, affirming an order of the special term.* But it will not review matters of discretion.^ An appeal from so much of the order of the general term, reversing an award confirmed by the special term, as refused to appoint new commissioners, when the latter were named in a stipulation, is reviewable in the court of appeals.^ The rule which deprives a party of the right to appeal from an order or judgment under which he has taken a benefit, is not applicable to these proceedings, and the right to appeal is not affected by accepting payment for the land and giving receipt therefor.^ Sec. 234b. Same — "Waiving right of appeal — Review. — Where 1 N. T. Code Civ. Proc, § 3375. Matter of Kings Co. E. R. Co., 82 2 Matter of Union E. R. Co. of N. Y. 95, 100 (1880). Brooklyn, 112 N. T. 61 (1889). « Matter of New York, L. & W. 3 JTew York & E. R. Co. v. Corey, R. Co., 98 N. Y. 447 (1885). 5 How. (X. Y.)Pr. 177(1850). ^ Matter of New York, H. E. « Rensselaer & S. R. Co v. Davis, Co., 98 N. Y. 12 (1885). See Matter 43 N. Y. 137 (1870). of New York W. S. & B. R. Co., 94 6 Matter of New York C. & H. E. N. Y., 287 (1884). Co., 64 N. Y. 60 (1876). See 538 APPEAL BY PLAINTIFF. the owner objects to the appointment of commissioners on the ground that the land was sought for private purposes, failure to appeal from a decision declaring that the purpose was public, and consent to the appointment of commissioners, do not amount to a waiyer of rights, and such owner may after- ward move to set the order aside. i But a small portion of the evidence upon which commissioners act in the formation ■of their awards can be placed before the appellate court, and there can, therefore, be no regular judicial review where the original jurisdiction is exercised in such a manner.^ Sec. 235. Appeal from Judgment by Plaintiff.— If a trial has been had and judgment entered in favor of the defendant, the plaintiff may appeal therefrom to the general term within the time provided for appeals from judgments by title four of chapter twelve of this act, and all the provisions of such chapter relating to appeals from judgments shall apply to such appeals ; and on the hearing of the appeal the general term may affirm, reverse or modify the judgment, and in case of reversal may grant a new trial, or direct that judgment be entered in favor of the plaintiff. If the judgment is affirmed, costs shall be allowed to the respondent, but if reversed or modified, no costs of the appeal shall be allowed to either party .^ Sec. 236. New Appraisal when Granted,— On the hear- ing of the appeal from the final order the court may direct a new appraisal before the same or new com- missioners, in its discretion, and the report of such commission«rs shall be final and conclusive upon all parties interested. If the amount of the compen- sation to be paid is increased by the last report, the 1 In re Niagara Falls & W. R. Co., Co., 47 Hun (N. T.) 396, 397 (1888). 4 K. Y. Supp. 485 (1888). « N. Y. Code Civ. Proc, § 3376. 2 Matter of Staten Island R. T. CONFLICTING CLAIMANTS. 539 difference shall be a lien upon the land appraised, and shall be paid to the parties entitled to the same, or shall be deposited as the court shall direct ; and if the amount is diminished, the difference shall be refunded to the plaintiff by the party to whom the same may have been paid, and judgment therefor may be rendered by the court, on the filing of the last report, against the parties liable to pay the same.^ Sec. 236a. Same — Second report — Confirmation — Review^. — The provision that the determination as to damages for land taken, made by commissioners of appraisal in their second report, shall be final and conclusive, precludes as well a review by a common law certiorari as by appeal.^ Such second report needs no order of confirmation.^ To authorize a court to review on motion a second report, there must be such an irregularity, fraud or mistake in the proceedings of the commissioners as would authorize the court, under its established practice, to set aside a judgment or verdict on a motion.* Sec, 237. Conflicting Claimants.— If there are adverse and conflicting claimants to the money, or any part of it, to be paid as compensation for the property taken, the court may direct the money to be paid into the court by the plaintiff, and may determine w^ho is entitled to the same, and direct to whom the same shall be paid, and may, in its discretion, order a reference to ascertain the facts on which such determination and direction are to be made.^ Sec. 237a. Same — Award to unknown owners — Tax title — Constitutional Law.— If the commissioners are unable to deter- 1 N. Y. Code Civ. Proc, § 3377. * Matter of Prospect Park & C. I. 2 People ex rel. Schuylerville, & E. Co., 85 X Y. 498 (1881). U. H. R. Co. V. Betts, 55 N. Y. 600 * Matter of New York Elevated R. (1874). Co., 41 Hun (N. Y.) 502 (1886). 6 N. Y. Code Civ. Proc, § 3378. 540 POSSESSION OF PROPERTY. mine to whom an award should be made, it should be made tO' unknown owners, the title to the award being determined in subsequent proceedings between the claimants. It is error to make a nominal award because of a failure to make title.^ A claim to a portion of the sum awarded as compensation made by the county for unpaid taxes upon the property cannot be maintained on any ground which would be insuf- ficient in a direct proceeding by virtue of the assessment to support a sale of the property or uphold a tax title.^ The provisions of this section are not in violation of the constitution. The money takes the place of land, and is subject to the same liens to which the land was before being taken.2 Sec. 238. Possession of Property— Giving Security At any stage of the proceeding the court may- authorize the plaintiff, if in possession of the property- sought to be condemned, to continue in possession, and may stay all actions or proceedings against him on account thereof, upon giving security, or depositing such sum of money as the court may direct to be held as security for the payment of the compensation •which may be finally awarded to the owner therefor, and the costs of the proceeding, and in every such case the owner may conduct the proceeding to a con- clusion, if the plaintiff delays or neglects to prosecute the same.* Sec. 239. Possession— When to be given Immediately.— When an answer to the petition has been interposed, and it appears to the satisfaction of the court that the public inl;^ rests will be prejudiced by delay, it may direct that the plaintiff be permitted to enter immediately upon the real property to be taken, and 1 Matter of Department of Public « Matter of N. Y. C. & H. E. R. Parks, 53 Hun (N. Y.) 280 (1889). Co., 60 N. Y. 116 (1875). 2 Matter of N. Y. C. & H. R. R. * N. Y. Code Civ. Proc, § 3379. Co., 90 N. Y. 342 (1882). NOTICE OP PENDENCY OF ACTION. 541 devote it temporarily to the public use specified in the petition, upon depositing with the court the sum stated in the answer as the value of the property, and which sum shall be applied, so far as it may be necessary for that purpose, to the payment of the award that may be made, and the costs and expenses of the proceeding, and the residue, if any, returned to the plaintiff, and, in case the petition should be dismissed, or no award should be made, or the pro- ceedings should be abandoned by the plaintiflF, the court shall direct that the money so deposited, so far as it may be necessary, shall be applied to the payment of any damages which the defendant may have sustained by such entry upon and use of his property, and his costs and expenses of the proceed- ing, such damages to be ascertained by the court, or a referee to be appointed for that purpose, and if the sum so deposited shall be insufficient to pay such damages, and all costs and expenses awarded to the defendant, judgment shall be entered against the plaintiff for the deficiency, to be enforced and col- lected in the same manner as a judgment in the supreme court ; and the possession of the property shall be restored to the defendant.^ Sec. 340. Pendency of Action— Notice of to be Filed,— Upon service of the petition, or at any time afterwards before the entry of the final order, the plaintiff may file in the clerk's office of each county where any part of the property is situated, a notice of the pendency of the proceedings, stating the names of the parties and the object of the proceeding, and con- taining a brief description of the property affected 1 N. T. Code Civ. Proe., § 3380. 542 PEACTICE IN CERTAIN CASES. thereby and from the time of filing, such notice shall be constructive notice to a purchaser, or incum- brancer of the property affected thereby, from or against a defendant with respect to whom the notice is directed to be indexed, as herein ^prescribed, and a person whose conveyance or incumbrance is subse- quently executed or subsequently recorded, is bound by all proceedings taken in the proceeding, after the filing of the notice, to the same extent as if he, was a party thereto. The county clerk must immedi- ately record such notice when filed in the book in. his office kept for the purpose of recording notices of pendency of actions, and index it to the name of each defendant specified in the direction appended at the foot of the notice, and subscribed by the plaintiff or his attorney.^ Sec. 241. Practice in Cases not Provided for, — In pro- ceedings under this title, where the mode or manner of conducting all or any of the proceedings therein is not expressly provided for by law, the court before whom such proceedings may be pending, shall have the power to make all necessary order and give necessary directions to carry into effect the object and intent of this title, and of the several acts con- ferring authority to condemn lands for public use, and the practice in such cases shall conform, as near as may be, to the ordinary practice in such court,^ Sec. 243. Repealing Clause.'— So much of all acts and parts of a(fts as prescribe a method of procedure in proceedings for the condemnation of real property for a public use is repealed, except such acts and parts of acts as prescribe a method of procedure for 1 N. Y. Code Civ. Proc, § 3381. a N. Y. Code Civ. Proc, § 3382. EXEMPTION PROM ACT. 543 the condemnation of real property for public use as a highway, or as a street, avenue, or public place in an incorporated city or village, or as may prescribe methods of procedure for such condemnation for any public use for, by, on behalf, on the part or in the name of the corporation of the city of New York, known as the mayor, aldermen, and commonalty of the city of New York, or by whatever name known, or by or on the application of any board, department, commissioners or other oflSeers acting for or on be- half or in the name of such corporation or city, or where the title to the real property so to be acquired vests in such corporation or in such city ; and all proceedings for the condemnation of real property embraced within the exceptions enumerated in this section are exiempted from the operation of this title.^ 1 N. Y. Code Civ. Proc, § 3383, 30, 1890, and went into effect imme- thus amended by Laws 1890, c. 247. diately. This amendment was passed April CHAPTER XIV. PROCEEDINGS FOR THE SALE OF CORPORATE REAL PROPERTY. WHEN PROCEEDINGS TO BE TAKEN — HOW INSTITTXTED — PETI- TION — CONTENT — HEARING — APPOINTMENT OP KEPBEEB ORDER — OPPOSITION TO — INSOLVENT CORPORATION — ^NO- TICE TO CREDITORS — HOW SERVED — ^PRACTICE. Sec. 243. When proceedings to be taken. Sec. 244. Proceedings to be instituted by petition — Contents of petition. Sec. 24.5. Hearing of application — Notice — Appointment of referee. Sec. 246. Order — ^Application for — When may be opposed. Sec. 246a. Same — Provisional order — Jurisdiction of court. Sec. 247. Insolvent corporation or association — Notice to creditors. Sec. 248. Service of notice — How made. Sec. 249. Practice in cases not provided for. Sec. 243. When Proceedings to be Taken.— Whenever any corporation or joint-stock association is required by law to make application to the court for leave to mortgage, lease or sell its real estate, the proceeding therefore shall be had pursuant to the provisions of this title.^ Sec. 244, Proceedings to be Instituted by Presentation of Petition,— The proceedings shall be instituted by the presentation to the supreme court of the district or the county courff of the county where the real property, or some part of it, is situated, by the corporation or association, applicant, of a petition setting forth the following facts : 1 N. T. Code Civ. Proc, § 3390. PETITION FOR SALE— CONTENTS. 545 1. The name of the corporation or association, and of its directors, trustees or managers, and of its principal oflScers, and their places of residence. 2. The business of the corporation or association, or the object or purpose of its incorporation or for- mation, and a reference to the statute under which it was incorporated or formed. 3. A description of the real property to be sold, mortgaged or leased, by metes and bounds, with reasonable certainty. 4. That the interests of the corporation or associa- tion will be promoted by the sale, mortgage or lease,' of the real property specified, and a concise state- ment of the reasons therefor. 5. That such sale, mortgage or lease has been authorized, by a vote of at least two-thirds of the directors, trustees or managers of the corporation or association, at a meeting thereof, duly called andheld, and a copy of the resolution granting such authority. 6. The market value of the remaining real property of the corporation or association, and the cash value of its personal assets, and the total amount of its debts and liabilities, and how secured, if at all. 7. The application proposed to be made of the moneys realized from such sale, mortgage or lease. 8. Where the consent of the shareholders, stock- holders or members of the corporation or association, is required by law to be first obtained, a statement that such consent has been given, and a copy of the consent, or a certified transcript of the record of the meeting at which it was given, shall be annexed to the petition. 9. A demand for leave to mortgage, lease or sell the real estate described. 35 546 HEARING OF APPLICATION— NOTICE. The petition shall be verified in the same manner as a verified pleading in an action in a court of record.^ Sec. 345. Hearing of Application — Notice — Appointment of Referee.— Upon presentation of the petition, the court may immediately proceed to hear the applica- tion, or it may, in its discretion, direct that notice of the application shall be given to any person in- terested therein, as a member, stockholder, ofiicer or creditor of the corporation or association, or other- wise, in which case the application shall be heard at the time and place specified in such notice, and the court may in any case appoint a referee to take the proofs and report the same to the court, with his opinion thereon.^ Sec. 246. Order— Application for— When may be Op- posed.— Upon the hearing of the application, if it shall appear, to the satisfaction of the court, that the in- terests of the corporation or association will be pro- moted thereby, an order may be granted authorizing it to sell, mortgage or lease the real property de- scribed in the petition, or any part thereof, for such sum, and upon such terms as the court may pre- scribe, and directing what disposition shall be made of the proceeds of such sale, mortgage or lease. Any person, whose interests may be affected by the proceeding, may appear upon the hearing and 1 N. T. Code Civ. Proc, § 3391, ing a sale of its real estate, and their As to requirements of petition on acts are binding upon it, although it sale of real estate^f religious corpo- does not appear that they had the rations in first department, see rules express sanction or authority of a of the general term of the supreme majority of the corporation. The court, first district, March, 1862. Madison Avenue Baptist Church v. Under the act to provide for the The Baptist Church in Oliver Street, incorporation of religious societies, 46 N. Y. 131 (1881) ; s. c. 73 N. T. the trustees of such a coi-poration 82, on subsequent appeal, are authorized to act in its behalf in ^ j^-. y. Code Civ. Proc, § 3392. taking the steps required for effect- INSOLVENT — NOTICE TO CREDITORS. 547 show cause why the application should not be granted.^ Sec. 246a. Same — Provisional Order — Jurisdiction of Court. — A provisional order may be made, such as an order that the sale TOay be made for a certain price and if a proper site for a new church can be obtained.^ The sale may be made by the trustees, or by an officer appointed by the court.^ It seems that the jurisdiction of the court to make an order for a sale depends upon the facts before it when the order was made, and that the order cannot be sustained by proof that the facts existed which justified the order, but which did not appear to the court at the time of the application.* Where it appears from the application that the sale is sought for the purpose of distributing the proceeds among the pew- holders, the court has no jurisdiction to grant the application, and its order is inoperative.^ Jurisdiction of the court to order sale by a religious society of its real estate, under Laws 1813, chap. 60, § 11, depends upon the facts before it at the time of making the order, and cannot be upheld by proof that facts which would have justi- fied the order existed, but were not brought to its attention.^ Sec. 247 . Insolvent Corporation or Association— Notice to Creditors. — If the corporation or association is in- solvent, or its property and assets are insufficient to fully liquidate its debts and liabilities, the applica- tion shall not be granted, unless all the creditors of the corporation have been served with a notice of the time and place at which the application will be heard.'' 1 N. T. Code Civ. Proc, § .3393. * Madison Avenue Baptist Church 2 Matter of Brick Presbyterian v. Baptist Church in Oliver Street, Church, 3 Edw. Ch. (N. T.) 155 46 N. Y. 140 (1871) ; citing Wheaton (1838). V. Gates, 18 N. T. 395 (1858). 2 De Ruyter v. St. Peter's Church, * Madison Avenue Baptist Church 3 N. T. 240 (1849). v. Baptist Church in Oliver St., 73 * Wheaton v. Gates, 18 N. T. 395 N. T. 82 (1878). ^1858). ' N. Y. Code Civ. Proc, § 3394. 548 HOW NOTICE SEBVED. Sec. 248. Service of Notices— How Made.— Service of notices, provided for in this title, maybe made either personally, or, in case of absence, by leaving the same at the place of residence of the person to be served, with some person of mature age and discre- tion, at least eight days before the hearing of the application, or by mailing the same, duly enveloped and addressed and postage paid, at least sixteen days before such hearing.^ Sec. 249. Practice in Cases not Provided for.— In all applications made under this title where the mode or manner of conducting any or all of the proceed- ings thereon are not expressly provided for, the court before whom such application may be pending, shall have the power to make all the necessary orders and give the proper directions to carry into effect the object and intent of this title, or of any act author- izing the sale of corporate real property, and the practice in such cases shall conform, as near as may be, to the ordinary practice in such court .2 1 N. Y. Code Civ. Proc, § 3395. « N. Y. Code Civ. Proc, § 3396. CHAPTER XV. WEEKLY PAYMENT OF WAGES. "WAGES — WEEKLY PAYMENT — PEKALTY FOK VIOLATION— PEOCEEDINGS TO BNPOKOE — CONSTITUTIONALITY. Sec. 250. Wages — Weekly payment of. S3EC. 251. Same — ^Penalty for violation — Defenses. Sec. 252. Same — Proceedings to enforce penalty. Sec. 253. Same — Constitutionality. Sec. 250. Wages— Weekly Payment of.— The general assembly of 1889-90 passed what is known as " the weekly payment of wages bill " which went into effect the first day of July, 1890^ and provides that " every manufacturing, mining or quarrying, lumber- ing, mercantile, railroad, surface, street, electric and elevated railway (except steam surface railroads,) steamboat, telegraph, telephone and municipal cor- poration and every incorporated express company and water company, shall pay weekly each and every employee engaged in its business the wages earned by such employee to within six days of the date of such payment; provided, however, that if at any time of payment any employee shall be absent from his regular place of labor he shall be entitled to said payment at any time thereafter upon de- mand," 2 1 L, 1890, c. 388, § 4. « L. 1890, c. 388, § 1. 550 PENALTY FOE VIOLATION. Sec. 251. Same— Penalty for Yiolation— Defenses — Any corporation violating any of the provisions of this act should be liable to a penalty not exceeding $50 and not less than $10 for each violation, to be paid to the people of the state, and which may be recovered in a civil action ; provided an action of such violation is commenced within thirty days from the date thereof. The factory inspectors of this state, their assistants or deputies, may bring an action in the name of the people of the state as plaintiff against any corporation which neglects to comply with the provisions of this act for a period of two weeks, after having been notified in writing by such in- spectors, assistants or deputies, that such action will be brought. On the trial of such action, such cor- poration shall not be allowed to set up any defence for a failure to pay weekly any employee engaged in its business the wages earned by such employee to within six days of the date of such payment, other than a valid assignment of such wages, or a valid set-off against the same, or the absence of such em- ployee from his regular place of labor at the time of payment, or an actual tender to such employee at the time of payment of the wages so earned by him, or a breach of contract by such employee, or a denial of the employment. No assignment of future wages, payable weekly under the provisions of this act, shall be valid if made to the corporation from whom such wages lire to become due, or to any person on behalf of such corporation, or if made or procured to be made to any person for the purpose of reliev- ing such corporation from the obligation to pay weekly under the provisions of this act. Nor shall any of said corporations require any agreement from PBOCEBDINGS TO BNPOECB PBKAIXTY. 551 any employee to accept wages at other periods than as provided in section one of this act as a condition of employment.^ Sec. 252. Same— Proceedings to Enforce Penalty, — The provisions of sections 236 and 384 of the code of civil procedure shall apply to and govern any proceedings brought to enforce the provisions of this act, and it is hereby made the duty of the Attorney -General of this state to appear in behalf of such proceedings brought hereunder by the fac- tory inspectors of this state, their assistants or dep- uties.^ Sec. 253. Same— Constitutionality— It has been claimed that this act is unconstitutional, on the ground that it interferes with subsisting contracts and seeks to regulate private business ; but this is thought not to be the case, because it deals only with corporations, and all corporations are subject to the right of the state to regulate and control them. » L. 1890, c. 388, § 2. « L. 1890, c. 388, § 3. PAUT II. MANUFACTURING CORPORATIONS. CHAPTER XVI. MANUFACTURING CORPORATIONS— PRELIMI- NARY. ACTS GOVERNING — INCORPORATION — TRUSTEES — NEGLECT — DISSOLUTION — STOCK — NON-PAYMENT — POWER OP TRUS- TEES — STOCK — TRANSFER — EVIDENCE OP INCORPORATION MANUFACTURERS OP CLAY AND EARTH — MAKING BY- LAWS — APPOINTING FIREMEN — ARTICLES EXEMPT FROM — DISTRESS — PIN MANUFACTORIES — LEATHER MANUFACTO- RIES — MORTGAGES BY, Sec. 254. Manufacturing corporations — Acts governing. Sec. 255. Same — Incorporation of Companies. Sec. 256. Same — To be bodies corporate and politic. Sec. 257. Same — Trustees to be annually elected — Vacancy in the office of trustees, bow filled — Number not to exceed nine. Sec. 258. Same — Company not dissolved by neglect to elect. Sec. 259. Same — Capital stock — Shares forfeited for non-payment. Sec. 260. Same — Powers of trustees. Sec. 261. Same — Stock deemed personal estate and how transferable — Stock- holders responsible — Restriction on the funds. Sec. 262. Same — Evidence of Incorporation. Sec. 26.3. Same — Manufacturers of clay or earth. Sec. 264. Same — Making by-laws — Appointing firemen. Sec. 265. Same — Certain articles to be exempt from distress and sale. Sec. 266. Same — Pin manufactories and others may be established. Sec. 267. Same — Manufactories of Morocco and other leather. Sec. 268. Same — Power to give mortgages — Doubts having existed. Sec. 269. Same — Act continued in force. Sec. 270. Same — Act revived. Sec. 271. Same — Act amended. Sec. 254. Mannfacturing Corporations— Acts goyern- 556 INCORPORATION OF COMPANIES. ing.— It is thought that under the decisions,^ it is prob- able that the courts would rule that the acts con- tained in this article were impliedly repealed by the general manufacturing act of 1848, contained in the next chapter ; but as they have never been expressly repealed, and as they are retained in all the com- pilations of the statutes since 1848, they are inserted here out of the abundance of precaution. Sec. 255. Same —Incorporation of Companies, — At any time within five years hereafter, any five or more persons who shall be desirous to form a com- pany for the purpose of manufacturing woolen, cotton or linen goods, or for the purpose of making glass, or for the purpose of making from ore, bar- iron, anchors, mill-irons, steel, nail-rods, hoop-iron and ironmongery, sheet copper, sheet lead, shot, white lead andred lead, may make, sign and acknowl- edge, before a justice of the supreme court, a judge of the court of common pleas, or a mastery in chan- cery, and file in the office of the secretary of this state, a certificate in writing, in which shall be stated the corporate name of the said company and the objects for which the company is formed, the amount of the capital stock of the said company, the number of shares of which the said stock shall consist, the number of trustees and their names who shall manage the concerns of the said company for the first year, and the names of the town and county in whfch the manufacturing operations of the said company are to be carried on.^ 1 People ex rel. v. Brooklyn, 69 8th ed., p. 1948. See Mead v. Keeler, N.Y. 605 (1877); Heckmannv. Pink- 24 Barb. (N. Y.) 20 (1857); Bank of ney, 6 Abb. (N. Y.) N. G. 371(1879); Poughkeepsie v. Ibbotson, 5 Hill s. c. 81 N. Y. 211. (N. Y.) 461 (1843). 2 L. 1811,c. 67, §1; 3N.Y. R.S., BODIES CORPORATE — ELECTING TRUSTEES. 557 Sec. 256. Same— To be Bodies Corporate and Politic— As soon as such certificate shall be filed as afore- said, the persons who shall have signed and acknowl- edged the said certificate, and their successors, shall, for the term of twenty years next after the day of filing such certificate, be a body politic and corpo- rate, in fact and in name, by the name stated in such certificate, and by that name they and their succes- sors shall and may have succession, and shall be persons in law capable of sueing and being sued, pleading and being impleaded, answering and being answered unto, defending and being defended, in all courts and places whatsoever, in all manner of actions, suits, complaints, matters and causes what- soever ; and they and their successors may have a -common seal, and the same may make, alter and change at their pleasure ; and that they and their successors, by their corporate name, shall in law be capable of buying, purchasing, holding and convey- ing any lands, tenements, hereditaments, goods, wares and merchandise whatever, necessary to en- able the said company to carry on their manufactur- ing operations mentioned in such certificate.^ Sec. a57. Same— Trustees to be Annually Elected— Vacancy in the Office of Trustees, how Filled — Number not to exceed Nine.— The stock, property and concerns of such company shall be managed and conducted by trustees, who, except those for the first year, shall be elected at such time and place as shall be directed by the by-laws of the said company, and public notice shall be given of the time and place of hold- 1 L. 1811, c. 67, § 2; 3N.T. R. S., v. Shepard, 4 Barb. (N. T.) 113 8th ed. , p. 1948. See Mead v. Keeler, (1848). 24 Barb. (N. Y.) 20(1857); Cusbman 558 NEGLECT TO ELECT TRUSTEES. ing such election not less than ten days previous thereto, in the newspaper printed nearest to the place where the manufacturing operations of the said company shall or are to be carried on, and the election shall be made by such of the stockholders as shall attend for that purpose, either in person or by proxy, and all elections shall be by ballot, and each stockholder shall be entitled to as many votes as he owns shares of the stock of the said company, and the persons having the greatest number of votes shall be trustees ; and whenever any vacancy shall happen among the trustees by death, resignation, or removals out of the state, such vacancy shall be filled for the remainder of the year in such manner as shall be provided by the by-laws of the said com- pany : provided always, that the number of trustees shall not exceed nine, and that they shall resj5ec- tively be stockholders in such company. i Sec. 258. Same— Company not Dissolved by Neglect to elect.— In case it shall at any time happen that an election of trustees be not made on the day when by the by-laws of the said company it ought to have been done, the said company for that cause shall not be dissolved, but it shall and may be lawful on any other day to hold an election for trustees, in such manner as shall be directed by the by-laws of such company.^ Sec. 259, Same— Capital Stock— Shares Forfeited for Non-payment.-g-The capital stock of such company shall not exceed one hundred thousand dollars ; and 1 L. 1811, c. 67, § 3; 3 N. T. E. S. Manuf. Co. of Benton, 15 Wend, 8th ed., p. 1949. See Matter of Eo- (N. Y.) 257 (1836). Chester Dist. Tel. Co. , 40 Hun (N. T. ) ^ l. jsn , c. 67, § 4 ; 3 N. Y. E. S. ^ 172 (1886); Clark v. Farmers' Woolen 8th ed., p. 1949. POWERS OF TRUSTEES. SSO' it shall be lawful for the trustees to call and demand from the stockholders respectively all such sums of money by them subscribed, at such time and in such proportions as they shall deem proper, under pain of forfeiting the shares of the said stockholders, and all previous payments made thereon, if such pay- ments shall not ' be made within sixty days after a notice requiring such payment shall have been pub- lished in such newspaper as aforesaid.^ Sec. 260. Same— Powers of Trustees.— The trustees of such company for the time being shall have power to make and prescribe such by-laws, rules and regu- lations as they shall deem proper respecting the management and disposition of the stock, property and estate of such company, the duties of the offi- cers, artificers and servants by them to be employed, the election of trustees, and all siich matters as appertain to the concerns of the said company, to appoint such and so many officers, clerks and ser- vants for carrying on the business of the said com- pany, and with such wages as to them shall seem reasonable : provided, that such by-laws be not in- consistent with the Constitution and laws of this state or of the United States.^ Sec. 261. Same— Stock deemed Personal Estate— How Transferred— Stockholders Responsible— Restriction on the Funds.— The stock of such company shall be deemed personal estate, and be transferable in such manner as shall be prescribed by the laws of the com- pany ; and that for all debts which shall be due and owing by the company at the time of its dissolution, 1 L. 1811, c. 67, § 5; 3 N. T. R. S., ^ l. isn, c. 67, § 6; 3 N. Y. R. S. 8th ed., p. 1949, See Mann v. 8th ed., p. 1949. Currie, 2 Barb. (N. T.) 294 (1848). 560 EVIDENCE OF INCOBPOEATION. the persons then composing such company shall be individually responsible to the extent of their respective shares of stock in the said company, and no further ; and that it shall not be lawful for such company to use their funds, or any part thereof, in any banking transaction, or in the purchase of any stock of any bank, or in the purchase of any public stock whatever, or for any other purposes than those specified in such instruments as afore- said.^ Sec. 262. Same— Evidence of Incorporation.— The copy of any certificate filed in pursuance of this act, and certified to be a true copy by the secretary of this state, or his deputy, shall, together with this act, be received in all courts and places as legal evidence of the incorporation of such company.^ Sec. 263. Same— Manufacturers of Clay or Earth. — It shall and may be lawful for any five or more per- sons who shall be desirous of forming a company for the purpose of manufacturing clay or earth into ware or articles for any use whatsoever, to associate 1 L. 1811, c. 67, § 7; SIST. Y. E. S., 8 Cow. (?ir. T.) 387 (1826); s. c. 18 8th ed., p. 1950. See Story v. Fur- Am. Dec. 454; Bank of Pough- man, 25 N. Y. 215 (1862); Garrison keepsie v. Ibbotson, 5 Hill (N. Y.) V. Howe, 17 N. Y. 458 (1858); Bradt 461 (1843); s. o. 24 Wend. (N. Y.) V. Benedict, 17 N. Y. 93 (1858); 473; Moss v. McCullougli, 5 Hill Kosevelt v. Brown, 11 N. Y. 148 (ST. Y.) 131 (1843); Moss v. Oakley, (1854); Mead v.Keeler,24Barb.(]Sr.Y.) 2 Hill (N. Y.) 265 (1842); Penniman 20(1857); Walker T. Grain, 17 Barb. v. Briggs, Hopk. Oh. (N. Y.) 300 (N. Y.) 119 (1853); Harris T.Thomp- (1824); Slee v. Bloom, 19 Johns, son, 15 Barb. (N. Y.) 62 (1853); Cat- (N. Y.) 456 (1822); s. c. 10 Am. Dec, skill Bank v. Graf, 14 Barb. (N. Y.) 273 ; Brinckerhoff v. Brown, 7 Johns' 471 (1851); Beers V. Phoenix Glass Co., Oh. (N. Y.)217(1828); Sleev.Bloom 14 Barb. (N. Y.) 358 (1852); Moss v. 5 Johns. Oh. (N". Y.) 366 (1821); McCullough, 7 Barb. (N. Y. ) 279 Fisk v. Keeseville Woolen & Cotton (1849); Tallmadge v. Fishkill Iron Manuf. Co., 10 Paige Ch. (If. Y.) Co., 4 Barb. (N. Y.) 382, 390 (1848); 592 (1844). Cushman v. Shepard, 4 Barb. (N.Y.) a L. 1811, c. 67, § 8; 3 N. Y. K. S., 113, 118 (1848); Briggs v. Penniman, 8th ed., p. 1950. MAKING BY-LAWS — AJPPOINTING FIKEMBK. 561 togetli6r and form such company according to the directions and restrictions mentioned in the act, en- titled, " An act relative to incorporations for manu- facturing purposes," passed March 22d, 1811; and such company when formed, and their successors, shall be a body politic and corporate, in fact and in name, with all the privileges, capacities and liabilities in the said act mentioned and contained.-' Sec. 264. Same— Making By-laws— Appointing Fire- men. — It shall and may be lawful for the president and directors of any company incorporated for the purpose of manufacturing cotton, woolen or linen yarns or cloths, and whose capital actually employed for such purpose shall exceed the sum of twenty-five thousand dollars, the number of persons actually employed in and about such manufactory shall not be less than fifty, to make, ordain and prescribe such by-laws and regulations within the limits of any parcel of land purchased by such company for that purpose, not exceeding twenty-five acres, as they may deem proper for the better preservation of prop- erty from fire within the limits of such parcel of land; and it shall and may be lawful for such presi- dent and directors, or a major part of them, to ap- point, under the common seal of the said corporation, a sufficient number of men, willing to accept, resid- ing within such limits, and not exceeding the number of twenty to every fire engine now provided or hereafter to be provided for the use of such estab- lishment, to have the care, management, working and using the said engines, and the other tools and instruments now or hereafter to be provided for the 1 L. 1815, c. 47, § 1; 3 N. T. K. S., 8th ed., p. 1950. 36 662 ARTICLES EXEMPT FROM SEIZUKB. extinguishing of fires, which persons so to be ap- pointed shall be called the firemen of such estab- lishment ; and while they respectively hold the said appointment shall be exempted from serving as jurors ; and the certificate of thfe directors, or their authorized agent, under the seal of the said com- pany, shall be evidence of the appointment of such firemen in all cases. ^ Sec. 265. Same— Certain Articles to be Exempt from Distress and Sale.— All articles of machinery, mate- rials for manufacturing, or manufactured articles be- longing to any such company, shall be free from seizure by execution or distress, for any debts or claims for rents or services, in whose hands soever they may be, except such execution or claim be against such company.^ Sec. 366. Same — Pin Manufactories and Others may be Established,— From and after the passing of this act, and during the time in which the acts above mentioned shall continue in force, it shall and may be lawful, for any five or more persons, who shall be desirous of forming a company for the purpose of manufacturing pins, or for the purpose of manu- facturing beer, ale or porter, or for the purpose of extracting lead from ore, to associate together, and form a company according to the directions and under the restrictions mentioned in the act, entitled " An act relative to incorporations for manufactur- ing purposes "; and such company, when so formed, and their successors, shall be a body politic and cor- porate, in fact and in name, with all the privileges, 1 L. 1815, c. 202, § 1, 3 N. Y. R. " L. 1815, c. 202, §2; 3 N. T. R. S., S., p. 1950. 8th ed., p. 1951. POWER TO GIVE MORTGAGES. 5G3 capacities and liabilities, in the last aforesaid act- mentioned and contained.-' Sec. 267. Same — Manufactories of morocco and other- Leather.— It shall and may be lawful for any five or more persons, who shall be desirous of forming a company for the purpose of manufacturing morocco and other leather, to associate together and form such company, according to the directions and re- strictions mentioned in the act entitled, " An act relative to incorporations for manufacturing pur- poses," passed March 22d, 1811; and such com- pany when formed, and their successors, shall be a body politic and corporate, in fact and in name, with all the privileges, capacities and liabilities in said act mentioned and contained: provided nevertheless, that no company or companies who shall become a body corporate under this act, shall be allowed to locate their establishment in any other counties than Greene and Delaware : and also, that the capi- tal stock of any such company shall not exceed the sum of sixty thousand dollars : and provided fur- ther, that it shall be lawful for the legislature, at any time after two years, to dissolve any incorpo- rations who may be formed under this act.^ Sec. 268. Same— Power to give Mortgages^Doubts having Existed.— Whether the trustees of manufac- turing companies, incorporated under and pursuant to the act of 1811, had power to secure the payment of debts contracted by them, by mortgaging their real estate, in order to remove their doubts the Gen- eral Assembly of 1822 enacted, That it shall be 1 L. 1816, c. 58, § 2; 3 N. Y. R. S., " L. 1817, c. 223, § 1; 3 N. T. R. £th ed., p. 1951. S., 8th ed., p. 1951. 564 ACT EBVrVED AND CONTINUED IN FORCE. lawful for the trustees of any such company to secure the payment of any debt contracted or to be contracted by them in the business for which they were incorporated, by mortgaging all or any part of the real estate of such company*; and every mort- gage of such trustees shall be as valid to all intents and purposes, as if executed by an individual owning the real estate : provided, that the written assent of the stockholders owning more than two-thirds of the stock of the company shall first be given. i Sec. 269. Same— Act continued in Force, — The act entitled, " An act relative to incorporations for manufacturing purposes," and the act, entitled, " An act to amend an act relative to incorporations for manufacturing purposes," shall be and continue in force until the first day of May, in the year of our Lord one thousand eight hundred and seven- teen, and no longer.^ By act of 1818^it was provided that the act of 1811 was revived and continued in force for five years.* Sec. 370. Same— Act Revived — The act, entitled " An act relative to incorporations for manufactur- ing purposes," passed on the twenty-second day of March, in the year of our Lord one thousand eight hundred and eleven, be hereby revived and con- tinued in full force and operation, anything con- tained in any other law to the contrary notwith- standing.5 • 1 L. 1822, c. 213, § 1; 3 N. Y. K. * See Tanderbilt v. Eagle Iron S., Sth ed., p. 1879. Works, 25 Wend. (N. Y.) 665 (1841). 2 L. 1816, c. 58, § 1; 3 N. Y. E. 5 l. 1821, c. 14, § 1; 3N. Y. E. S., S., Sth ed., p. 1951. 8tli ed., p. 1952. See Vanderbilt v. 8 L. 1818, c. 67, § 1; 3 N. Y. E. Eagle Iron Works, 25 Wend. (N. Y.) S., Sth ed., p. 1952. 666, 667 (1841). AMENDMENT OF ACT. 565 Sec. 371. Same— Act amended. — By the act of 1817 it is provided that it shall be lawful for any com- pany who shall become a body corporate under the act, entitled " An act to amend the act, entitled ' An act relative to incorporations for manufacturing pur- poses,' passed April 14th, 1817," to locate their establishment in the county of Oneida, anything in the proviso to said act to the contrary notwithr standing.^ 1 L. 1819, c. 102, § 1; 3 N. Y. E. S., 8th ed., p. 1952. CHAPTER XVII. MANUFACTURING CORPORATIONS— FORMATION. SCOPE OF ACT — FOE WHAT BUSINESS ORGANIZED — HOW FORMED — RIGHTS AND POWERS — NUMBER OF CORPORA- TORS — WHEN BECOME BODIES CORPORATE — EXTENSION OF CORPORATE EXISTENCE. Sec. 272. Title of act. Sec. 273. Amenclments and extension of act — Construction. Sec. 274. Scope of Act. Sec. 274a. Same— For what business companies may be organized. Sec. 275. Same— Corporations— How formed. Skc. 275a. Same— Eigiit and powers of companies. Sec. 276. Number of corporators— Purposes. Sec. 277. When to become bodies corporate. Sec. 278. Extension of existence. Sec. 272. Title of Act.— The title of what is com- monly known as The Manufacturing Act, passed February seventeenth, eighteen hundred and forty- eight,^ which was originally entitled, " An act to authorize the formation of corporations for manufac- turing, mining, mechanical or chemical purposes," was subsequently changed so as to read " An act to authorize tiie formation of corporations for manufac- turing, mining, mechanical, chemical, agricultural, horticultural, medical or curative, mercantile or commercial purposes." ^ 1 3 N. Y. R. S., 8th ed., p. 1953, ^ L. 1855, c. 425; L. 1866, c. 838; et $eq. L. 1887, c. 506. See 3 N. T. R. S., 8th ed. p. 1967. AMENDED ACT — CONSTRUCTION. 567 Sec. 2.73. Amendment and Extension of Act— Con- struction. — The manufacturing act, as originally passed, has been amended and extended from time to time, and these various amendments and exten- sions have given rise to no little conflict of opinion, and raised no little doubt as to just what business and enterprises the act as amended covers. Certain rules have been established by the court with respect to these amendatory statutes which are as follows : 1. The amendment of a statute, by declaring that the same shall read as prescribed by the amenda- tory act, has the effect of merging the former statute in the amendatory act, so that the former statute has no longer any vitality as to future trans- actions. This merger is so complete that a repeal of the amendatory act does not revive the original statute, but both fall together.' 2. Where a statute has been thus amended, a later statute declaring the original act (with no reference to the amendment) to be applicable, makes it appli- cable in its amended, not in its original, form.^ 3. Where an act purports thus to amend a former statute, but a construction, according to the fore- going rule number one, would render the whole pro- vision meaningless and ineffectual, and it appears clearly, from either extrinsic or intrinsic circum- stances, that it was the intention of the legislature, not to abrogate the former provision, but to add to it a new clause, effect will be given to such intention, rather than to the literal terms of the act.^ 1 People V. Supervisors of Mont- cise Comm'rs, 9 Abb. (N. Y.) N. 0. gomery Co., 67 N. T. 109 (1876). 117 (1880). 2 Board of Excise v. Curley, 9 Abb. ^ In re Rochester Water Commis- L. 1864, c. 337, §§1 and 2; 3 N. S., 8th ed., p. 1974. See L. 18S4, T. E. S., 8th ed., p. 1564. c. 386, §§ 1, 2, 3 and 4; 3 N. Y. R. s L. 1864, c. 357, as amended by S., 8th ed.. p. 2054 ; L. 1866, c. 371, L. 1868, c. 781; 3 N. Y. R. S., 8th §§ 2 and 3; 3 N. Y. E. S., 8th ed., ed., p. 1964. p. 1967. « L. 1879, c. 317, §§ 1 and 2; 2 jST. i" L. 1880, c. 241, § 2; 3 N. Y. R. Y. R. S., 8th ed., p. 936; L. 1880, c. S., 8th ed., p. 1974. 263, §§4 and 5; 3 N. Y. E. S., 8th COKPOEATIONS — HOW FORMED. 573 Union railway depots.^ United States collecting companies.^ Vessels. See Raising ; Towing. Water accumulating, conducting, furnishing, storing, and supplying for agricultural, domestic, manufacturing, mining and municipal purposes, except domestic, manufacturing and municipal purposes in New York city.^ See Hot Water; Mineral Waters ; Mining. Water for mining.* Wharves, construction, constructing or operating inland wharves and basins, together with the purchase and improv- ing of land therefor.^ See Elevators. Wine companies.® Wines. See Grape. Wrecking. See Towing. Sec. 375. Same— Corporations— How Formed.— At any time hereafter, any three or more persons who may desire to form a company for the purpose of carrying on any kind of manufacturing, mining, mechanical, or chemical business.'^or the business of printing, publishing or selling books, pamphlets or newspapers, or advertising the same or other articles, or for the purpose of purchasing, taking, holding and possessing real estate and buildings, and selling, leasing and improving the same, or the business of making butter, cheese, concentrated or condensed milk, or any other products of the dairy, or the business of erecting buildings for church sheds or laundry purposes, and the carrying on of 1 L. 1882, c. 273, §§ 1, 2 and 3; 3 * L. 1866, c. 371, §§ 1, 2 and 3; 3 2>r. Y. R. S., 8th ed., p. 213. N. Y. R. S., 8th ed., p. 1967. 2 L. 1857, c. 262, as amended by * L. 1875, c. 365; 3 N. Y. E. S., L. 1883, c. 240; 3 N. Y. R. S., 8th 8th ed., p. 1972. «d., p. 1954. « L. 1865, c. 234, § 1; 3 N. Y. K. 3 L. 1880, c. 85, §§ 1-6, as amended L., 8th ed., p. 1965. l)y L. 1881, c. 472; 3 K- Y. E. S., 8th ed., pp. 1970, 1974. 574 HOW CORPOKATIONS FORMED. laundry business or the business of slaughtering- animals, or for the purpose of towing or propelling canal boats, vessels, rafts or floats on the canals and navigable rivers of the state of New York by animal or steam power, or for the purpose of buying, stor- ing, selling or shipping coal, merchandise and farm produce, their operations not to be confined to the county in which their certificate shall be filed, or the supplying of hot water or hot air or steam for motive power, heating, cooking, or other useful application in the streets and public and private buildings of any city, village or town in this state, or the business of buying, breeding, grazing, pas- turing, dealing in and selling cattle, sheep, hogs, horses and other live stock in the United States of America, British North America and elsewhere, may make, sign, and acknowledge before some officer competent to take the acknowledgment of deeds and file in the office of the clerk of the county in which business of the company shall be carried on, and a duplicate thereof, in the office of the secre- tary of state, a certificate in writing, in which shall be stated the corporate name of said company, and the objects for which the company shall be formed, the amount of the capital stock of said company, the time of its existence (not to exceed fifty years), the number of shares of which the said stock shall con- sist, the number of trustees and their names, who- shall managewthe concerns of said company for the first year, and the name of the town and county in which the operations of said company are to be car- ried on. No company organized under this act for the purpose of taking, purchasing, holding or pos- sessing real estate and buildings, and selling, leas- HOW AND FOK WHAT FORMED. 575 ing and improving the same, shall be permitted to purchase and hold real estate to the value of more than one million dollars, but this act shall not be deemed to repeal or affect in any way any act here- tofore passed amendatory of or supplementary to the said act of February seventeen, eighteen hun- dred and forty-eight, except as herein provided.^ 1 L. 1848, c. 40, § 1, as amended by L. 1888, c. 313; 3 N. Y. R. S., 8th ed., p. 1955. See Loring v. United States Vulcanized Gutta Percha Belting and Packing Co., 30 Barb. (N. T.) 645 (1859.) The first section of the act of 1848, c. 40, has been frequently amended and extended ; the last amendment is given above, the others follow. At any time hereafter, any three or more persons who may desire to form a company for the purpose of carrying on any kind of manufactur- ing, mining, mechanical or chemi- cal business, or the business of print- ing, publishing or selling books, pamphlets, or newspapers, or adver- tising the same or other articles, or for the purpose of purchasing, tak- ing, holding and possessing real estate and buildings, and selling, leasing and improving the same, or the business of making butter, cheese, concentrated or condensed milk or any other products of the dairy, or the business of erecting buildings for church sheds or laundry purposes, and the carrying on of laundry business, or the business of slaughtering animals, or for the pur- pose of towing or propelling canal boats, vessels, rafts or floats on the canals or navigable rivers of the state of New York, by animal or steam power, their operations not to be confined to the county in which their certificates shall be filed, or the supplying of hot water or hot air or steam for motive power, heating, cooking or other useful applications, in the streets and public and private buildings of any city, village, or town in this state, or the business of buy- ing, breeding, grazing, pasturing, dealing in and selling cattle, sheep, hogs, horses and other live stock in the United States of America, Brit^ ish North America and elsewhere, may make, sign and acknowledge before some officer competent to take the acknowledgment of deeds, and file in the office of the clerk of the county in which the business of the company shall be carried on, and a duplicate thereof in the office of the secretary of state, a certificate in writing, in which shall be stated the corporate name of said company and the objects for which the com- pany shall be formed, the amount of the capital stock of said company, the time of its existence, (not to exceed fifty years), the number of shares of which the said stock shall consist, the number of trustees and their names, who shall manage the con- cerns of said company for the first year, and the name of the town and coimty in which the operations' of said company are to be carried on. No company organized under this act for the purpose of taking, pur- chasing, holding or possessing real estate and buildings, and selling, leasing and improving the same. 576 EIGHT AND POWERS. Sec. 275a. Same — Right and powers of Companies. — A power to manufacture implies a power to sell and collect,^ and a shall be permitted to purchase and hold real estate to the value of more than one million dollars, but this act shall not be deemed to repeal or affect in any way any act heretofore passed amendatory of or supplementary to the said act of February seventeen, eighteen hundred and forty-eight, except as herein provided. L. 1848, c. 40, § 1, as amended by L. 1885, c. 84, § 1; 3 N. T. R. S., 8th ed., p. 1954. At any time hereafter, any three or more persons who may desire to form a company for the purpose of carrying on any kind of manufactur- ing, mining, mechanical or chemical business, or the business of printing and publishing books, pamphlets and newspapers, or the business of receiving, obtaining, collecting and accumulating items and matters of news, and selling, vending, furnish- ing and supplying the same, may make, sign and acknowledge before some officer competent to take the acknowledgment of deeds, and file in the office of the clerk of the county in which the business of the company shall be carried on, and a duplicate thereof in the office of the secretary of state, a certificate in writing, in which shall be stated the corpor- ate name of the said company, and the objects for which the company shall be formed, the amoimt of the capital stock of the said company, the term of its existence not to exceed fifty years, the number q| shares of which the said stock shall consist, the num- ber of trustees and their names who shall manage the concerns of said company for the first year, and the names of the town and county in which the operations of the said com- pany are to be carried on. L. 1848, c. 40, § 1, as amended by L. 1884, c. 267, § ■l;-3 N. Y. K. S., 8th ed., p. 1953. At any time hereafter any three or more persons who may desire to form a company for the purpose of carry- ing on any kind of manufactm-ing, mining, mechanical or chemical busi- ness, or the business of printing, publishing or selling books, pam- phlets or newspapers, or the business of making butter, cheese, concen- trated or condensed milk, or any other products of the dairy, or the business of erecting buildings for church sheds or laundry purposes, and the carrying on of laundry busi- ness, or the business of slaughtering animals, or for the purpose of tow- ing or propelling canal boats'^ vessels, rafts or floats on the canals and nav- igable rivers of the State of Kew York, by animal or steam power, their operations not to be confined to the county in which their certificates shall be filed, or the supplying of hot water or hot air or steam for motive power, heating, cooking or other useful applications, in the streets and public and private buildings of any city, village or town in this statee may make, sign and acknowledge be- fore some officer competent to tak- the acknowledgment of deeds, and file in the office of the clerk of the county in which the business of the company shall be carried on, and a duplicate thereof in the office of the secretary of state, a certificate in writing in which shall be stated the corporate name of the said company and the objects for which the com- 1 De Graft v. American Linen T. Co., 21 K. Y. 124 (1860). ACTS XJLTEA VIBES BINDING. 577 party dealing with a corporation is presumed to know its powers.^ And the same is true in regard to its agents.* A corporation may be bound b}- its acts, although done beyond the power granted to it.^ The authority of the offi- cers to draw and indorse paper may be proved by showing that they had formerly done similar acts.* Corporations are residents in the counties where their pany shall be formed, the amount of the capital stock of said company, the time of its existence (not to ex- ceed fifty years), the number of shares of which the said stock shall consist, the number of trustees and their names, who shall manage the concerns of said company for the first year, and the name of the town and county in which the operations of the said company are to be carried on. L. 1848, c. 40, § 1, as amended by L. 1882, c. 309; 3 K Y. R. S., 8th ed., p. 1953. See Nassau Gas L. Co. V. Brooklyn, 89 N. T. 409 (1882); Raisbeck v. Oesterricher, 4 Abb. (N. T.) N. C. 444 (1878); Lor- ing V. United States Vulcanized G. P. B. & P. Co., 30 Barb. (N. T.) 645 (1859); Chesebrough Manuf. Co. v. Coleman, 44 Hun (N. T.) 545 (1887); People V. Beach, 19 Hun (N. T.)259 (1879). By the laws of 1857, c. 262, § 1, as amended by Laws of 1883, c 240; 3 N. Y. R. S., 8th ed., p. 1954, it is provided that any three or more per- sons who may desire to form a com- pany for the purpose of carrying on any kind of manufacturing, mining. mechanical or chemical business, or the business of printing and publish- ing books, pamphlets and newspa- pers, or the business of receiving, ob- taining, collecting and accumulating items and matters of news, and sell- ing, vending, furnishing and supply- ing the same, may make, sign and acknowledge before some officer com- petent to take the acknowledgment of deeds, and file in the office of the clerk of the county in which the bus- iness of the company shall be carried on, and a duplicate thereof in the office of the secretary of state, a cer- tificate in writing, in which shall be stated the corporate name of the said company, and the objects for which the company shall be formed, the amount of the capital stock of the said company, the term of its exist- ence, not to exceed fifty years, the number of shares of which the said stock shall consist, the number of trustees, and their names, who shall manage the concerns of said com- pany for the first year, and the names of the town and county in which the operations of the said company are to be carried on. 1 Akin V. Blanchard, 32 Barb. (N. Y.) 527 (1860). '' Adriance v. Roome, 52 Barb. (N. Y.) 399 (1868); Dabney v. Ste- vens, 40 How. (N. Y.) Pr. 341 (1870). ' Bissell V. Michigan Southern & N. J. R. Co., 22 N. Y. 258 (1860); 37 Ellis V. Howe Machine Co., 9 Daly (N. Y.) 78 (1880). * Olcott V. Tioga R. Co., 27 N. Y. 546 (1863). As to when officers can- not bind. See Alexander v. Cauld- well, 83 N. Y. 480 (1881) ; Westerfield V. Radde, 7 Daly (N. Y.) 326 (1877). 578 PTTEPOSES AND OBJECTS— TTlSTDEESTANDrNGS AS TO. ■ offices are located, and tlieir principal business carried on,* and are not limited to any particular kind of obligations in borrowing money.^ They may negotiate notes to raise money ; ^ or borrow money to pay off a prior indebtedness.* A corporation created for a limited period may acquire title to lands in fee,^ but where a mode of operation is pre- scribed by the statute, it must be followed strictly,* and a power to convey is a power to mortgage.^ The directors must act strictly within their powers.* A general understanding between the original subscribers, as to the corporate purposes and objects, cannot limit the powers of the corporation, as embodied in the certificate ; ^ and the rights and franchises of a corporation incorporated under a general law are as inviolable as if it was. incorporated by a special charter.^'' A contract purporting to be made by a corporation, and within its power to make, and having the corporate seal and president's signature affixed, is presumptively binding upon it." 1 Rosenbaum V. Union Pac. R. Co., 2 How. (S. T.) Pr. N. S. 45 (1885); Conroe v. National Prot. Ins. Co., 10 How. (ST. T.) Pr. 403 (1855); Perry v. Round Lake C. M. Assoc., 22 Hun (N. T.) 293 (1880). 2 Curtis T. Leavitt, 15 N. Y. 9 (1857). ^ Holbrook v. Basset, 5 Bosw. (N. Y.) 147 (1859). « Jansen v. Otto Stietz N. Y. G. L. Co., 16 N. Y. St. Rep., 905 (1888); Rochester Sav. Bank v. Averell, 23 Hun (K Y.) 643 (1882), afarmed 96 N. Y. 467. " NicoU T. New York & E. R. Co., 12 X. Y. 121 (1854* « Farmers L. & T. Co. v. Carroll, 5 Barb. (N. Y.) 613 (1849). ' Jackson v. Brown, 5 Wend. (N. Y.) 590 (1830). 8 Abbot v. Hard Rubber Co., 11 Abb. (N. Y.) Pr. 204 (1860); I,ife & F. Ins. Co. V. Mechanic F. I. Co., 7 Wend. (N. Y.) 31 (1831). As tty what is a sufBlcient designation of business and objects Of corporation. See People v. Beach, 19 Hun (N. Y.) 259 (1879). ' Hatch V. American Union Tel. Co., 9 Abb. (K Y.) N. C. 223 (1881). 1° People ex rel Sturges v. Keese, 27 Hun {N. Y.I 483 (1882). 11 New England Iron Co. v. Gilbert Elevated R. Co., 91 N. Y. 153 (1883). What is not a manufacturing cor- poration. See People v. Knicker- bocker Ice Co., 19 N. Y. Week. Dig. 194 (1884). Where a, company cannot plead ultra vires. Rider Life Raft Co. v. Roach, 97 N. Y. 378 (1884); Wood- ruff V. Erie R. Co., 93 N. Y. 609 (1883); reversing 25 Hun (N.Y.) 246. When corporations liable for ma- licious prosecution. Morton v. Met- ropolitan Life Ins. Co., 34 Hun (N. Y.) 366 (1884). ■ S"UMBBE OF COIiPOBATOES. 679 Sec. 276. Number of Corporators— Purposes.— Any nine or more persons may organize themselves into a corporation in the inanner specified and required in and by the act entitled " An act to authorize the formation of corporations for manufacturing, mining, mechanical or chemical purposes," passed February seventeen, eighteen hundred and forty-eight, for the purposes of building, manufacturing, owning, fui-- nishing, letting, selling and maintaining locomotive , engines, cars, rolling stock and machinery to be used or operated upon railways, or any one or more of such purposes.-' By the laws of 1881^ it is provided that any three or more persons may, and are hereby authorized, to organize and form themselves into a corporation in the manner (except as hereinafter provided) speci- fied or required in or by the act entitled " An act to authorize the formation of corporations for manu- facturing, mining, mechanical or chemical purposes," passed February seventeenth, eighteen hundred and forty-eight, or any amendment or amendments there- of, for the objects and purposes of carrying on the business and operations of owning, constructing, maintaining, using and operating warehouses, ele- vators, docks, wharves and basins. Every corpora- tion so formed shall have and may exercise any and all powers and privileges necessary or proper in carrying on or connected with such business or operations, or any part or parts thereof, and all the capacities, powers, benefits and privileges mentioned in or conferred by the aforesaid act, passed Febru- ary seventeenth, eighteen hundred and forty-eight, 1 L. 1873, .;. 814, § 1; 3 N. T. E. "^ L. 1881, c. 65, § 1; 3 N. T. K. S., 8tli ed., p. 1971. S., 8tli ed., p. 2000. 580 NTTMBEE OF COKPOKATOKS. ■or any amendment or amendments thereof ; and shall be subject to all the duties and obligations imposed by, and the provisions of the said act as amended, except as herein otherwise provided. By the laws of 1871 ^ any three or more persons may organize themselves into a corporation in the manner specified and required in and by the act entitled " An act to authorize the formation of cor- porations for manufacturing, mining, mechanical or chemical purposes," passed February seventeenth, eighteen hundred and forty-eight, for the purpose of purchasing, acquiring, maintaining and improving Teal estate for residences, homesteads and apart- ment houses, to be leased and conducted by the corporation so formed, and occupied by the stock- holders thereof, and others, and also for the purpose of purchasing, acquiring, maintaining, improving and managing a building or buildings which shall contain a hall for public meetings and entertain- ments ; and apportioning and distributing the same among the stockholders and members of such cor- poration, and also for filling in and improving lands. The corporation so formed shall be subject to all the provisions and obligations of the act aforesaid, and the acts amendatory thereof, and it shall have power to take and hold by purchase, contract or lease, and convey such real estate as shall be necessary to carry out the objects of said corporation ; and it may distribifte and apportion the same and the rent, income and proceeds thereof among its members and stockholders in such manner as shall be deter- 1 L. 1871, c. 535, as amended by L. 1881, c. 589, 3 N. Y. K. S., 8th ed., p. 1971. BECOME BODIES CORPORATE. 581 mined by its by-laws ; and may sell and convey to purchasers thereof such real estate as said corpora- tion may have acquired by purchase or otherwise, provided, however, that it shall not be lawful for said corporation to hold at any one time real estate, the market value of which shall exceed the sum of five hundred thousand dollars. Sec, 277. When to become bodies Corporate.— When the certificate shall have been filed as aforesaid, the persons who shall have signed and acknowledged the same, and their successors, shall be a body poli- tic and corporate, in fact and in name, by the name stated in such certificate ; and by that name have succession, and shall be capable of sueing and being sued in any court of law or equity in this state, and they and their successors may have a common seal, and may make and alter the same at pleasure ; and they shall, by their corporate name, be capable in law of purchasing, holding and conveying any real and personal estate whatever which may be neces- sary to enable the said company to carry on their operations named in such certificate, but shall not mortgage the same or give any lien thereon.^ 1 L. 1840, c. 48, § 2; 3 N. Y. K. S., is conclusive as to the location there- 8th ed., p. 1955. This section is re- in designated for the purpose of tax- tained unaltered, although L. 1867, ation. Western T. Co. v. Scheu, 19 c. 248, after amending section 1 of N. Y. 408 (1859). A corporation, this act, provided that "the second being an artificial person, is pre- section of said act is hereby amen- siuned capable of making every con- ded." See L. 1864, c. 517; .3 N. Y. tract a natural person could make. K. S., 8th ed., p. 1965, also Strong Feeny v. People's Fire Ins. Co., 2 V. Wheaton, 38 Barb. (N. Y.) 616 Eobt. (N. Y.) 599 (1862). No cor- (1861) ; Dorris v. French, 4 Hun poration is formed till the certificates (H. Y.) 292 (1875). When power to are filed with the oflScers specified, sell and convey is not power to lease. Childs v. Smith, 55 Barb. (N. Y.) 45 See M. C .Co. v. Abbey, N. Y. Daily (1869) ; Childs v. Smith, 38 How.. Keg. June 20, 1885. The certificate (N. Y.) Pr. 328 (1869). A charter of 582 KXTENSION OF EXISTENCE. Sec. 278. Extension of Existence.— Whenever any company, formed under said act, shall have fixed the duration of its corporate existence for a less period than it was privileged to do by the first sec- tion of said act, it may by a vote of the stockholders representing a majority of the stock, and upon exe- cuting and acknowledging a new or amended certifi- cate under its corporate seal, signed by the president and two thirds of its directors, or trustees, and filing the same in the county where its business shall be carried on, and in the office of the secretary of state, extend the term of its corporate existence from time to time, to a period not longer in the aggregate than it could have originally fixed the same, and shall thereupon possess all the powers and privileges, and be subject to all the liabilities mentioned in said act, during such extension of its existence.-' incorporation is to be construed ac- A corporation may indorse only such cording to its spirit and meaning as paper as is necessary in its business, well as its letter. White v. Syracuse Central Bank v. Empire S. D. Co., & U. R. Co., 14 Barb. (N. Y.) .560 26 Barb. (N. T.) 23 (1858); Beers v. (1853). The subscription of the whole Phoenix Glass Co., 14 Barb. (N. Y.) amount of stock is not necessary to a 358 (1852). It is not necessary for legal corporate existence. Schenec- a corporation to attach a seal to make tady & S. P. R. Co. v. Thatcher, 11 its contract valid. Hoag v. Lamont, N. Y. 102 (1854). A defendant who 60 N. Y. 96 (1875). has contracted with a corporation as i L. 1857, c. 29, § 2, as amended by such, cannot set up a defence that it L. 1867, c. 12; 3 N. Y. R. S., 8th ed., is no corporation. Palmer v. Law- 1962. rence, 3 Sandf. (N. Y.) 161 (1849). CHAPTER XVIII, lilANUFACTURING CORPORATIONS— FOR WHAT PURPOSES FORMED. AGEICTJLTTJEAL CO's — COAL AND PEAT CO'S— DEBDGING CO'S — 6EAPE CULTUEE — BLEVATOES — WABEHOUSES AND DOCKS — FISH CO'S — ICE CO'S — EAISING VESSELS — MINEEAL "WATEE CO'S— NAVIGATION AND SALVAGE CO'S — ^NEWS CO'S — BOOK CO'S — OIL CO'S — EAILEOAD CO'S — EOLLING STOCK go's — EEAL ESTATE CO"s — SALT CO'S— STEAM HEAT- ing co's — towing and peopelling vessels — watee go's. •Sec. 279. What business may be organized under — Agricultural Companies. Sec. 280. Same — Agricultural, horticultural, medical, and curative associa- tions — What certificate shall state. Sec. 281. Same — May hold stoclc in certain companies. Sec. 282. Same — Officer in two companies. Sec. 28.3. Same — Coal and peat companies. Sec. 284. Same — Cultivating grapes and making wine. Sec. 285. Same — Dredging, dock building, etc., companies. Sec. 286. Same — ^Elevators, warehouses, docks, skating rinks, fair grounds etc. Sec. 287. Same — Fish companies — Manufacture of fertilizers. Sec. 288. Same — Ice companies. Sec. 289. Same — Made subject to other laws. Sec. 290. Same — Machines and companies for raising. Sec. 291. Same — Not limited to county. Sec. 292. Same — Mineral water companies. Sec. 293. Same — Navigation and salvage companies. Sec. 294. Same — Limits of such corporations. Sec. 295. Same — News — Collecting and vending. Sec. 296. Same — Book and newspaper companies. Sec. 297. Same — Oil Companies. Sec. 298. Same — Bailroad and rolling stock companies. Sec. 299. Same — May lay down and maintain railroad track. Sec. 300. Same — Union railway depots. Sec. 301. Same — Stock — Who may maintain. Sec. 302. Same— Rules, etc. 584 BUSINESSES ORGANIZED UNDBE. Sec. 303. Same — ^Eeal estate companies — Tenement houses, homesteads, and public halls. Sec, 303a. Same — Additional real estate, to what extent and how maybe acquired. Sec. 304. Same — Salt companies — When to pay in stock. Sec. 305. Same — Steam-heating companies — How to be known. Sec. 306. Same — Must furnish steam when requiBed — Penalty for neglect or refusal. Sec. 307. Same — Power of municipalities. Sec. 308. Same — Laying pipes in streets for heating, etc. Sec. 309. Same — Agent authorized to enter buildings and examine meter — Penalty for interfering with agent. Sec. 310. Same — Agent may enter and cut off — Under what contingencies^ Misdemeanor to open valves, etc. Sec. 311. Same — Corporations for towing or propelling vessels. Sec. 312. Same — Water companies. Sec. 313. Same— Liability of company and stockholders. Sec. 314. Same — May be conducted by — Mining companies. Sec. 315. Same — Must file certificate of such intention. Sec. 316. Same — May acquire title to land in same manner as railroad com- panies. Sec. 317. Same — May make contracts to furnish water. Sec. 318. Same — Corporations may be organized for boring, etc, for water. Sec. 319. Same — Eights, privileges, etc., of such corporations. Sec. 320. Same— Have power to lay pipes, etc., through streets — Consent of public authorities. Sec. 321. Same — May contract with cities, etc. , to furnish water — In New York city, bonds to be issued and money raised. Sec. 322. Same — Water for mining. Sec. 323. Same — Corporations subject to certain provisions. Sec. 324. Same — Former incorporations may proceed hereunder. Sec. 279. What Businesses may be Organized Underi— Agricultural Companies.— Any three or more persons may organize and form themselves into a corpora- tion in the manner specified and required in and by the act entitled, " An act to authorize the formation, of corporations for manufacturing, mining, mechani- cal or chemical purposes," passed February seven- teenth, eighteen hundred and forty-eight, for the purpose of propagating, cultivating and developing the different varieties of the grape, and the manu- facture of wines and brandies therefrom, and culti- > For a table of the various busi- may be organized imder this act, see nesses to carry on which corporations ante, § 274o. AGKICULTUKAL, ETC., CO'S — CERTIFICATE. 285 ■vating sugar cane, cotton, rice, tobacco, indigo and other products of the earth, for preparing the same for market, and for transporting and disposing of the same. Every corporation so formed shall be subject to all the provisions and obligations con- tained in the aforesaid act, and the several acts amendatory of the same, so far as they are or may be applicable, and shall be entitled to all the bene- fits and privileges conferred by said act and amend- atory acts ; except that such corporations shall not be confined in their operations to the counties in which their certificates shall be filed. ^ Sec. 280. Same— Agricultural, Horticultural, Medical, and Curative Associations — What Certificate shall State* At any time hereafter, any three or more persons may form a corporation for the purpose of carrying on any kind of manufacturing, mining, mechanical, chemical, agricultural, horticultural, medical or cura- tive business, may make, sign and acknowledge, before some oflScer competent to take acknowledg- ment of deeds, and file the same in the office of the clerk of the county in which the business of the company shall be carried on, and a duplicate in the office of the secretary of state, a certificate in writ- ing in which shall be stated the corporate name of said company and the objects for which it shall be formed, the amount of its capital stock, the number of shares of which said stock shall consist, the term of its existence, not exceeding fifty years, the num- ber of its trustees and the names of those who shall manage the concerns of the company for the first year, and the names of the town or city and county 1 L. 1865, c. 234, § 1; 3 N. T. K. S., 8th ed., p. 1965. 586 MAY HOLD STOCK IN OTHER CO'S. in which the operations of the said company shall be carried on.^ Sec. 381. Same— May hold Stock in Certain Com- panies.— It shall be lawful for any company hereto- fore or hereafter organized under the provisions of this act, or the act hereby amended to hold stock in the capital of any corporation engaged in the busi- ness of mining, manufacturing or transporting such materials as are required in the prosecution of the business of such company so long as they shall fur- nish or transport such materials for the use of such company and for two years thereafter, and no longer ; and also to hold stock in the capital of any corpora- tion which shall use or manufacture materials, mined or produced by such company ; and the trustees of such company shall have the same power with respect to the purchase of such stock and issuing stock therefor as are now given by the law with respect to the purchase of mines, manufactories and other property necessary to the business of manu- facturing, mining and other companies. But the capital stock of such company shall not be increased without the consent of the owners of two-thirds of the stock to be obtained As provided by sections twenty-one and twenty-two of the act hereby amended.2 Sec. 282. Same— Officer in two Companies.— "When any such manufacturing company shall be a stock- holder in a?iy other corporation, its president or other oflBcers shall be eligible to the office of trustee 1 L. 1866, c. 838, § 2; 3 N. T. K. « L. 1866, e. 838, § 3, as amended S., 8th ed., p. 1967. by L. 1876, c. 358; 3 N. Y. R. S., 8th ed., p. 1967. COAL, PEAT, GKAPE AND WINE COMPANIES. 587 of such corporation, the same as if they were in- dividually stockholders therein.^ Sec. 283. Same.— Coal and Peat Companies.— By the act of 1865^ it is provided that any three or more persons may organize and form themselves into a corporation, in the like manner, for the purpose of buying and selling and transporting coal and peat of all kinds. Also, that every corporation so formed shall be subject to all the provisions, duties and obligations contained in this act, and amendments thereto, and shall be entitled to all the benefits and privileges thereby conferred, except that such cor- porations shall not be confined in their operations to the county in which their certificates shall be filed. Sec. 284. Same— Cultivating Grapes and Making Wine. — Any three or more persons may organize and form themselves into a corporation in the manner specified and required in and by the act entitled " An act to authorize the formation of corporations for manu- facturing, mining, mechanical or chemical purposes," passed February seventeenth, eighteen hundred and forty-eight, for the purpose of propagating, culti- vating and developing the different varieties of the grape, and the manufacturing of wines and brandies therefrom, and cultivating sugar-cane, cotton, rice, tobacco, indigo and other products of the earth, for preparing the same for market, and for transporting and disposing of the same. Every corporation so formed shall be subject to all the provisions and obligations contained in the aforesaid act, and the several acts amendatory of the same, so far as they are or may be applicable, and shall be entitled to 1 L. 1866, c. 838, § 4; 3 N. T. K. ^ L. 1865, c. 307, §§ 1 and 2; 3 N. S., 8th ed., p. 1968. T. K. S., 8th ed., p. 1966. 588 DOCK AND ELEVATOE COMPANIES. all the benefits and privileges conferred by said act and amendatory acts ; except that such corpora- tions shall not be confined in their operations to the counties in which their certificate shall be filed. ^ Sec. 285. Same — Dredging, Dock Building, etc., Com- panies. — Any three or more persons may organize and form themselves into a corporation in the man- ner specified and required in and by the act entitled " An act to authorize the formation of corporations for manufacturing, mining, mechanical or chemical purposes," passed February seventeenth, one thou- sand eight hundred and forty-eight, for the purpose of constructing and using machines for dredging and filling of land, and dock building, or for the con- struction and operation of inland wharves and basins, and the purchase, improvement and sale thereof. Every corporation so formed shall be subject to all the provisions, duties and obligations contained in the above-mentioned act, and shall be entitled to all the benefits and privileges thereby conferred. ^ Sec. 286. Same— Elevators, Warehouses, Docks, Skat- ing Rinks, Fair Grounds, etc. —The act of 1864^ pro- vides that any three or more persons are thereby authorized to organize themselves into a corporation in a manner provided by the said act, and with all the powers, benefits and privileges thereby con- ferred, and subject to all the duties, liabilities and restrictions therein imposed, for the purpose of carrying on •the business of constructing, maintain- ' L. 1865, c. 2.34, § 1; 3 N. T. R. L. 1881, c. 650; 3 N. Y. R. S., 8th S., 8th ed., p. 1965. ed., p. 2000. 2 L. 1875, c. 365, §§ 1 and 2; 3 N. ' L. 1864, c. 337, § 3, as amended Y. R. S., 8th ed., p. 1972. See also by L. 1868, c. 781; 3 N. Y. R. S., 8th ed., p. 1965. ■WAREHOUSE AND ELEVATOR COMPANIES. 589 ing and using stationary and floating elevators, or ■warehouses, for all purposes pertaining to, or con- nected with trade or commerce in the several kinds of grain in the state of New York, or for the pur- pose of purchasing a suitable lot and erecting there- on a building, to be used as a skating rink, and for holding fairs, meetings, exhibitions and all other lawful entertainments and amusements.^ A later amendment provides that any three or more persons may, and are thereby authorized, to organize and form themselves into a corporation in the manner (except as hereinafter provided) speci- fied or required in and by the act entitled " An act to authorize the formation of corporations for manu- facturing, mining and chemical purposes," passed February seventeenth, eighteen hundred and forty - eight, or any amendment or amendments thereof, for the objects and purposes of carrying on the busi- ness and operations of owning, constructing, main- taining, using and operating warehouses, elevators, docks, wharves and basins. Every corporation so 1 The Laws of 1881, c. 650; 3 N elevators, docks, wharves and basins. Y. R. S., 8th ed., p. 2000, provides Every corporation so formed shall that any three or more persons may, have and may exercise any and all and are thereby authorized to, organ- powers and privileges necessary or ize and form themselves into a cor- proper in carrying on or connected poration in the manner (except as with such business or operation, or hereinafter provided) specified or re- any part or parts thereof, and all the quired in or by the act entitled " An capacities, powers, benefits and priv- act to organize the formation of cor- ileges mentioned in or conferred by porations for manufacturing, mining, the aforesaid act, passed February mechanical or chemical puiposes," seventeen, eighteen hundred and passed February seventeen, eighteen forty-eight, or any amendment or hundred and forty-eight, or any amendments thereof ; and shall be amendment or amendments thereof, subject to all the duties and obliga- for the objects and purposes of car- tions imposed by, and the provisions rying on the business and operations of the said act as amended, except as ■of owning, constructing, maintain- herein otherwise provided, ing, using and operating warehouses, 690 FISH FEBTILIZEE COMPANIES. formed shall have and may exercise any and all powers and privileges necessary or proper in carrying on or connected with such business or operations, or any part or parts thereof, and all the capacities, powers, benefits and privileges men- tioned in or conferred by the aforesaid act, passed February seventeenth, eighteen hundred and forty- eight, or any amendment or amendments thereof ; and shall be subject to all the duties and obligations imposed by, and the provisions of the said act as amended, except as herein otherwise provided.-^ Sec. 287. Same— Fish Companies— Manufacture of Fer- tilizers.- At any time hereafter, any three or more persons who may desire to form a company for the purpose of catching such fish in the salt waters of Suffolk county as are not fit for food for man, by seines or otherwise, to be used for and converted into fertilizers, may make, sign and acknowledge before some notary public, and file in the office of the clerk of Suffolk county, and a duplicate thereof in the office of Secretary of State, a certificate in writing, in which shall be stated the corporate name of the company, the objects for which the company shall be formed, the amount of capital stock of the said company, the term of its existence, not to exceed fifty years, the number of shares of which the said stock shall consist, the number of trustees and their names who shall manage the concerns of the company for the first year, and the name of the town in Suffolk county in which the operations of said company are to be carried on. 2 The companies formed under this act shall be 1 L. 1881, c. 650, § 1; 3 r ". K. 2 L. 1868, c. 161, § 1. S., 8tlied.,p. 2000. ICE COMPANIES. 591 subject to the provisions of chapter forty of the laws of eighteen hundred and forty-eight, entitled, "An act to authorize the formation of corporations for manufacturing, mining, mechanical or chemical pur- poses," and the various amendments thereto, so far as the same may be applicable. Each stockholder shall be personally liable for the debts of said com- pany in an amount equal to the stock held or owned by him.^ Sec. 288. Same— Ice Companies.— Any three or more persons may organize themselves into a corporation in the manner specified and required in and by the act entitled " An act to authorize the formation of corporations, for manufacturing, mining, mechani- cal or chemical purposes," passed February seven- teenth, one thousand eight hundred and forty-eight, for the purpose of collecting, storing and preserving ice, of preparing it for sale, of transporting it to the city of New York or elsewhere, and of vending the same.2 Sec. 289. Same— Made Subject to Other Laws.— Every corporation so formed shall be subject to all the provisions, duties and obligations contained in the above-mentioned act, and shall be entitled to all the benefits and privileges thereby conferred, except that such corporations shall not be confined in their operations to the county in which their certificate shall be filed.a Sec. 290. Same— Machines and Companies for Baising^ Vessels.— Any three or more persons may organize » L. 1868, c. 161, § 2. S., 8th ed., p. 1962. See People v. 2 L. 1855, c. 301, § 1; 3 N. Y. K. Knickerbocker Ice Co., 99 N. T. S., Sthed-.p. 1962. 181 (1885), s, c. .52 Am. Rep. 110, " L. 1855, c. 301, § 2; 3 N. T. R. affirming 32 Hun (N. Y.) 475. 592 MINEKAL WATER COMPANIES. and form themselves into a corporation in the man- ner specified and required in and by the act entitled, " An act to authorize the formation of corporations lor manufacturing, mining, mechanical or chemical purposes," passed February seventeenth, one thou- sand eight hundred and forty-eight, for the purpose of constructing and using machines for the raising of vessels or other heavy bodies.-' Sec. 291. Same— Not Limited to County.— Every cor- poration so formed shall be subject to all the pro- visions, duties and obligations contained in the above-mentioned act, and shall be entitled to all the benefits and privileges thereby conferred, except that such corporation shall not be confined in their operations to the county in which their certificate shall be filed. 2 Sec. 292. Same— Mineral Water Companies- — Any three or more persons may organize themselves into a corporation, in the manner specified and required in and by the act entitled "An act to authorize the formation of corporations for manufacturing, mining, mechanical or chemical purposes," passed February seventeen, eighteen hundred and forty- eight, for the purpose of bottling and selling min- eral water drawn from any natural mineral spring. Every corporation so formed shall be subject to all the provisions, duties and obligations contained in the above mentioned act, and shall be entitled to all the benefits and privileges thereby conferred.^ 1 L. 1851, c. 14, § 1; 3 N.T. R. S. effect of. this section is to render 8th ed., p. 1961. stockholders and trustees personally 2 L. 1851, c. 14, § 2; 3 N. T. R. S., liable, wherever they are so liable 8th ed., p. 1961. under the act of 1848. Wakefield v. 8 h. 1863, c. 63, §§ 1 and 2; 3 N. Fargo, 90 N. T. 213 (1882). T. R. S., 8th ed., p. 1964. The NAVIGATION AND SALVAGE COMPANIES. 593 Sec. 293. Same— NaTigation and Salvage Cojapanies. Any three or more persons may organize and form themselves into a corporation in the manner spe- cified and required in and by the act entitled " An act to authorize the formation of corporations for manufacturing, mining, mechanical or chemical pur- poses," passed February seventeenth, one thousand eight hundred and forty-eight, for the purpose of constructing, owning, and using vessels and ma- chines to be employed for hire in towing vessels, ■carrying freight and passengers, and in aiding, protecting and saving vessels and their cargoes, wrecked or in distress, on any of the navigable rivers and lakes in or bordering upon the State of New York, or on the high seas, or in the various arms of the seas and rivers running into the same, with all the rights appertaining by law to private individuals performing services as salvors. ^ Sec. 294. — Same — Limits of such Corporations. — Every •corporation so formed, shall be subject to all the provisions, duties and obligations contained in the above-mentioned act, and shall be entitled to all the benefits and privileges thereby conferred, except that such corporations shall not be confined in their •operations to the county in which their certificate shall be filed. 2 Sec. 295. Same— News— Collecting and Vending.— An act of 1883^ provides that any three or more per- sons who may desire to form a company for the purpose of carrying on any kind of manufacturing, mining, mechanical or chemical business, or the 1 L. 1864, c. 337, § 1; 3 N. T. E. » L. 1883, c. 241, § 1, amending L- S., Sth ed., p. 1964. 1857, c. 262, § 1; 3 N. T. K. S., 8th 2 L. 1864, c. 337, § 2;. 2 N. T. R. ed., p. 1955. S., 8th ed., p. 1964. 38 594 BOOK AND NEWSPAPBE COMPANIES. business of printing and publishing books, pam- phlets and newspapers, or the business of receiving, obtaining, collecting and accumulating items and matters of news, and selling, vending, furnishing and supplying the same, may liiake, sign and ac- knowledge before some officer competent to take the acknowledgment of deeds, and file in the office of the clerk of the county in which the business of the company shall be carried on, and a duplicate there- of in the office of the secretary of state, a certificate in writing, in which shall be formed, the amount of the capital stock of the said company, the term of its existence not to exceed fifty years, the number of shares of which the said stock shall consist, the number of trustees and their names who shall man- age the concerns of said company for the first year,^ and the names of the town and county in which the operations of the said company are to be carried on. Sec. 296. Same— Book and Newspaper Companies. — By chapter 262 of the Laws of 1857, the first section of the manufacturing Act of 1848 was amended by authorizing thereunder the formation of companies for printing and publishing books, pamphlets and newspapers. By chapter 309 of Laws of 1882, power was given to sell, in addition to the right to publish.^ Sec. 297. Same.— Oil Compnies.— Any three or more persons may organize and form themselves into a corporatioft in the manner specified and required in and by the act entitled "An act to authorize the formation of corporations for manufacturing, mining and mechanical or chemical purposes," passed Feb- ruary seventeenth, eighteen hundred and forty- ^SeeSN. Y. E. S.,8th ed., p. 1953. EAUiEOAD, ETC., COMPAJTIES. 595 eight, for the storage, conveyance and transportation of petroleum and other oils, so that under said act and the acts amendatory thereof, it shall be lawful to form companies for carrying on the business of storing, conveying and transporting petroleum and- other oils, and of doing all things necessary and. proper therefor, subject to such laws or regulations; as are now or may hereafter be in force, in the several cities of this state where such business may be conducted, relating to the storage and safe-keep- ing of petroleum and other oils. Every corporation so formed shall be subject to all the provisions, duties and obligations contained in the above-men- tioned act, and shall be entitled to all the benefits and privileges thereby conferred.^ Sec. 398. Same — Railroads and Rolling Stock Com- panies.— Any nine or more persons may organize themselves into a corporation, in the manner speci- fied and required in and by the act entitled, " An act to authorize the formation of corporations for manufacturing, mining and chemical purposes, passed February seventeenth, eighteen hundred and forty-eight, for the purposes of building, manufac- turing, owning, furnishing, letting, selling and main- taining locomotive engines, cars, rolling stock, and machinery to be used or operated upon railways, or any one or more of such purposes.^ Every corpora- tion so formed shall be entitled to all the benefits and privileges conferred by the before-mentioned act, and may contract and transact its business with any railway company or other person engaged in the 1 L. 1875, c. 113, §§ 1 and 2; 3 N. ^ L. 1873, c. 814, § 1; 8 N. Y. K. T. R. S., 8th ed., p. 1972. S., 8th ed., p. 1971. 596 BAILWAY DEPOT GOMPANTES. operation of any railway in the United States or ■Canada, but shall otherwise be subject to all the pro- visions, duties and obligations in the said act contained. Sec. 299. Same— May lay Down' and Maintain Rail- road Track.— Any individual, joint-stock association or corporation now or hereafter engaged in the man- ufacture of railroad cars in this state may lay down and maintain such railroad tracks not exceeding one mile in length, as shall be necessary to connect such manufacturing establishment with the tracks of any railroad now or hereafter operated in this state ; provided they shall obtain the consent of the owners of one -half in value the property bounded on, and the consent also of the local authorities having the control of that portion of a street or highway upon which it is proposed to construct or operate such railroad be first obtained ; or in case the consent of such property owners cannot be obtained, the gen- eral term of the supreme court, in the district in which it is proposed to be constructed, may, upon application appoint three commissioners, who shall determine, after a hearing of all parties interested, whether such railroad ought to be constructed or operated, and their determination, confirmed by the court, may be taken in lieu of the consent of the property owners.^ Sec. 300. ^Same— Union Railway Depots.~Any three or more persons may organize themselves into a corporation in the manner specified and required in 1 L. 1873, c. 814, § 2; 3 K. T. R. York and Kings. L. 1880, c. 267, S., 8tli ed.. p. 1971. §§ 1 and 2; 3 N. T. R. S., 8th ed., ^ The provisions of this act shall p. 1839. not apply to the counties of New STOCK — "WHO MAY TAKE. 597 and by chapter forty, laws of eighteen hundred and forty-eight, entitled, " An act to authorize the for- mation of corporations for manufacturing, mining, mechanical or chemical purposes," for the purpose of purchasing, acquiring, building upon and improve ing real estate for union railway depots to be leased and occupied by any railroad company or companies owning, leasing or operating a railroad within this state. The corporations so formed shall be subject to all the privileges and obligations of the act aforesaid and all acts amendatory thereof, or supplementary thereto, and shall have power to take and hold by purchase, contract or lease, and convey such real estate as shall be necessary to carry out the objects of said corporation.^ Sec. 301 . Same— Stock— who may Take.— Any railroad corporation, created under and by the laws of this state or of any adjoining state, is hereby authorized to subscribe for, take and hold the stock of corpo- rations, created under and by virtue of this act in such amounts as the directors of the said subscribing- corporation may, from time to time, deem best for its interest.^ Sec. 302. Same— Rules, etc.— The directors of any corporation, organized under and in pursuance of this act, may, from time to time, make such just, proper and needful rules and regulations for the use of the union depot or depots owned or acquired by it as to the said directors, or a majority of them, may, from time to time, seem proper. ^ 1 L. 18S2, c. 273, § 1; 3 N. T. E. ^ l. i882, c. 273, § 3; 3 N. Y. Y. S., 8th ed., p. 2013. S., 8th ed., p. 2013. 2 L. 1882, c. 273, § 2; 3 N. Y. K. S., 8th ed., p. 2013. 598 TENEMENT HOUSES. Sec. 303. Same— Real estate Companies — Tenement honses, Homesteads, and— Public Halls— Any three or more persons may organize themselves into a cor- poration in the manner specified and required in and by the act entitled, " An act to authorize the forma- tion of corporations for manufacturing, mining, mechanical or chemical purposes," passed February seventeenth eighteen hundred and forty-eight, for the purpose of purchasing, acquiring, maintaining and improving real estate for residences, homesteads and apartment houses, to be leased and conducted by the corporation so formed, and occupied by the stockholders thereof, and others, and also for the purpose of purchasing, acquiring, maintaining improv- ing and managing a building or buildings which shall contain a hall for public meetings and entertain- ments, and apportioning and distributing the same among the stockholders and members of such cor- poration, and also for filling in and improving lands. The corporation so formed shall be subject to all the provisions and obligations of the act aforesaid, and the acts amendatory thereof, and it shall have power to take and hold by purchase, contract, or lease, and convey such real estate as shall be necessary to carry out the objects of said corporation ; and it may distribute and apportion the same and the rent, income and proceeds thereof among its members and stockholders in such a manner as shall be determined by its by-lawvs ; and may sell and convey to pur- chasers thereof such real estate as said corporations may have acquired by purchase or otherwise, pro- vided, however, that it shall not be lawful for said corporation to hold at any one time real estate, the SALT COMPANIES. ' 599 market value of which shall exceed the sum of five hundred thousand dollars.^ Sec. 303a. Same — Additional real estate, to vrhat extent and how, may be acquired.— Any association or corporation duly- organized under the laws of this state for the purpose of acquiring, maintaining and improving real estate for resid- ences, homesteads and apartment houses in any city having over twenty-five thousand inhabitants, may hold at any one time real estate in excess of the amount now limited by law by filing with the clerk of the county where its certificate of incorporation is filed a resolution of its board of trustees, duly attested, fixing the amount desired to be held, together with a consent in writing of its members or stockholders repre- senting two-thirds in amount of its capital stock, and the approval of a justice of the Supreme Court in said county, and thereupon it shall be lawful for such corporation to hold at any one time the amount of real estate so fixed, assented to and approved, but no such corporation or association shall hold real estate to exceed in value three millions of dollars.^ Sec. 304. Same— Salt Companies— when to pay in stock. — No incorporated company organized or hereafter to be organized for the manufacture of salt, under the " Act to authorize the formation of corporations for manufacturing, mining, mechanical, or chemical purposes," passed February 17, 1848, shall be deemed dissolved or shall be dissolved, on account of the capital stock of such company not being paid in, the one half within one year, and the other half within two years from the incorporation of such company, provided that such stock shall be paid in within four years from the organization of such company.^ Sec. 305. Same— Steam-heating Companies— How to be 1 L. 1871, c. 5.35, § 1, as amended = l. isss, c. 71; 3 N. T. R. S., 8th by L. 1881, chs. 58, 232, 589; 8 N. T. ed., p. 2001. B. S., 8th ed., p. 1971. " L. 1857, c. 29, § 1; 3 N. Y. K. S., 8th ed., p. 1962. 600 ■ STEAM HEATING COMPANIES. konwn.— Any company heretofore organized, or which may hereafter be organized, for the purpose of sup- plying steam to consumers from a central station or stations through pipes laid in the public streets, shall be known as a district stearc^ company.^ Sec. 306. Same— Must furnish steam when required- Penalty for neglect or refusal.— Upon the application, in writing, of the owner or occupant of any building or premises within one hundred feet of any street main laid down by any such district steam company, and payment by him of all money due from him to the company, the company shall supply steam as may be required for heating such building or premises, not- withstanding there may be rent or compensation in arrears for steam supplied, or for meter, pipe or fit- tings furnished to a former occupant thereof, unless such owner or occupant shall have undertaken or agreed with the former occupant to payor to exonerate him from the payment of such arrears, and shall refuse or neglect to pay the same ; and if for the space of twenty days after such application, and the deposit (if required) of a reasonable sum to cover the cost of connection and two months' steam supply, the company shall refuse or neglect to supply steam as required, the company shall forfeit and pay to such applicant the sum of ten dollars, and the further sum of five dollars for every day thereafter during which such refusal or neglect shall continue ; provided that^no such company shall be required to lay a service pipe for the purpose of supplying steam to any applicant, where the ground in which such, pipe is required to be laid shall be frozen, or shall otherwise present serious obstacles to laying the » L. 1885, c. 54fl, § 1; 3 N. Y. E. S., 8th ed., 1975. LAYING STEAM PIPES IN STREET. 601 same ; nor unless the applicant, if required, shall deposit in advance with the company a sum of money sufficient to pay for two months' steam supply and the cost of the necessary connections and of the- erection of a meter and such other special apparatus as are required for use in connection with such steam supply, nor unless the applicant shall provide the space and right of way necessary for the erec- tion, maintenance and use of such connections and apparatus, nor unless the said applicant shall first signify his assent in writing to the reasonable regulations of the company with reference to the supply of steam to consumers.^ Sec. 307 Same— Power of Municipalities.— The mu- nicipal authorities of the cities, towns and villages of the State of New York are hereby authorized and empowered, to carry out the provisions of this act.^ Sec. 308. Same— Laying Pipes in Streets for Heating, etc.—- A-ny corporation or association formed or organ- ized under the act entitled " An act to authorize the formation of corporations for manufacturing, mining, mechanical or chemical purposes," passed February seventeenth, eighteen hundred and forty-eight, or un- der any of the amendments to said act, or under the " Act to provide for the organization and regulation of certain business corporations," passed June twenty-first, eighteen hundred and seventy-five, shall have full power to manufacture, furnish and sell such quantities of hot water, hot air or steam as may be required in the city, town or village where the same shall be located ; and such corpora- i L. 188S, c. 549, § 2; 3 N. T. R. " l. 1377, c. 317, § 1; 2 R. S., 8th K., 8th ed., 1975. ed., p. 936. ■602 EXAMINATION OF BUILDING. tion shall have power to lay pipes or conductors for conducting hot water, hot air or steam through the streets, avenues, lanes, alleys, squares and high- ways in such city, village or town, with the consent of the municipal authorities of ■ said city, town or village, and under such reasonable regulations and conditions as they may prescribe ; and whenever any such permission shall be granted, it shall only be upon the condition that reasonable compensation shall»be paid therefor, and upon a further condition that a satisfactory bond shall be given to secure the city, town or village against all damages in the use of said pipes. The amount of the compensation, and the manner of its payment, and the amount of the bond, shall be first fixed and determined by said municipal authorities before any pipes, as provided for by this act, shall be laid in any city, town or village of this state, and that all such permissions heretofore given by any of said municipal author- ities, where the above terms have been complied with, are hereby confirmed.^ Sec, 309. Same— Agent Authorized to enter buildings and Examing Meter— Penalty for Interfering with Ag^t. — Any corporation organized under the laws of this state for the purposes aforesaid may make an agree- ment with any of its customers by which any officer or agent of such corporation, duly authorized in writing, signed by the president or secretary of said corporation, shall be authorized at all reasonable times to enter any dwelling, store, building, room or places supplied with steam by such corporation and occupied by said customer for the purpose of I L. 1879, c. 317, § 2; 3 N. Y. R. S., 8th ed., 986. INTERFEBIFG WITH AGENT. 603 inspecting and examining the meters, devices, pipes, fittings, and appliances for supplying and regulating the supply of steam, and for ascertaining the quan- tity of steam consumed, or the quantity of water resulting from the condensation of steam consumed. Every such agreement so made in writing shall fur- ther provide that such officer or agent shall exhibit his written authority, if requested by the occupant of such dwelling, store, building, room or place. Any person who shall directly or indirectly prevent or hinder such officer or agent from entering such dwelling, store, building, room or place, or from making such inspection or examination, in violation of his agreement with said corporation, shall forfeit and pay to the corporation, the sum of twenty-five dollars for each offence.^ Sec. 310. Same— Agent may Enter and Cut Off— Under what Contingencies— Misdemeanor to open values, etc.— If any person or persons, corporation or asso- ciation, supplied with steam by such corporation organized under the laws of this state for the pur- poses aforesaid, shall neglect or refuse to pay the rent or remuneration for such steam, or for the meter, device, pipes, fittings or appliances, let by such corporation for supplying steam, or for as- certaining the quantity of steam consumed, or the quantity of water resulting from the condensation of the steam consumed, agreed upon or due for the same, as required by his, their or its contract with such corporation, the latter may thereupon stop and prevent the steam from entering the premises of such person, persons, corporation or association so neglecting or refusing to pay such rent or remunera- i L. 1880, c. 263, § 4; 3 N. Y. R. S., 8th ed., p. 1974. 604 PENALTY FOR INTEEFEEING WITH AGENT. tion. The said corporation may also in any of the cases enumerated in this act in which a person is liable to pay a forfeiture or is liable to fine or imprisonment, or both such fine or imprisonment, stop and prevent the steam from entering the prem- ises of the person so liable, or, if such person be an officer or agent of any corporation or association, stop and prevent the steam from entering the prem- ises of the corporation or association of which the person so liable is an officer or agent. In all cases in which such corporation is authorized to stop and prevent the steam from entering any premises, it may, by its officers, agents or workmen, enter into or on such premises between the hours of eight o'clock in the forenoon and six o'clock in the after- noon, and cut off, disconnect, separate, and carry away any meter, device, pipe, fitting or other prop- erty of the said corporation, and may cut off, discon- nect, and separate any meter, device, pipe or fitting, whether the property of the corporation or not, from, the mains or pipes of said corporation. Any person who, without the consent of such corporation, shall open or cause to be opened, any valve closed under the provisions of this section, by any corporation organized under the laws of this state for the purposes aforesaid, or reconnect or qause to be reconnected, any connection disconnected by any such corpora- tion under such provisions, or turn on steam or cause the same to be turned on, or to re-enter any prem- ises, when the same has been stopped and prevented from entering them by such corporation, as provided in this section, shall be deemed guilty of a misde- meanor ; and upon conviction shall be punished by fine not exceeding two hundred and fifty dollars, or TOWING AND PROPELLING VESSELS. 605 by imprisonment not exceeding six months, or by both such fine and imprisonment.^ Sec. 311. Same— Corporations for Towing or Propel- ling Vessels.— The organization of any corporation for the purpose of towing or propelling canal boats, vessels, rafts or floats on the canals and navigable rivers of the state of New York, by animal or steam power, their operations not to be confined to the county in which their certificate shall be filed, formed since the passage of chapter three hundred and seventy-four of the laws of eighteen hundred and seventy-seven, and all the acts of the trustees of any such corporation, organized in compliance with the provisions of such last-named chapter, are hereby made as legal in all respects as if the said last-named chapter had remained in full force, and every such corporation so organized is hereby de- clared to have existence and to have the same powers and privileges in all respects as if the said act, being chapter three hundred and seventy-four of the laws of eighteen hundred and seventy -seven, had been in full force in all respects at the time of the forma- tion of any such corporation.^ Sec. 312. Same— Water Companies— Organization of. — Any three or more persons may organize and form themselves into a corporation in the manner spe- cified and required in and by the act entitled, " An act to authorize the formation of corporations for manufacturing, mining, mechanical or chemical pur- poses," passed February seventeenth, eighteen hun- dred and forty-eight, and the amendments thereof 1 L. 1880, c. 263; § 5, as amended ^ L. 1880, c. 241, § 2; 3 N. Y. B. by L. 1883, c. 237; 3N. Y. R. S., 8th S., 8th ed., p. 1974. «d., p. 1975. 606 ABILITY OF COMPANY AND STOCKHOLDEES. and supplements thereto, for the purpose of accu- mulating, storing, conducting, selling, furnishing and supplying water for mining, domestic, manufacturing municipal and agricultural purposes, and may acquire, take, hold, lease and convey lands and water power suitable for those purposes. ^ Sec. 313. Same— Liability of Company and Stock- holders.— Every corporation so formed and the stock- holders thereof shall be subject to all the provisions, duties and obligations contained in the above-men- tioned act, and shall be entitled to all the benefits, and privileges thereby conferred, except that such corporations shall not be confined in their operations to the county in which their certificate shall be filed.2 Sec. 314. Same— May be Conducted by Mining Com- panies.— It shall and may be lawful for any corpora- tion heretofore incorporated or hereafter to be incorporated, for mining purposes, under the act mentioned in the first section of this act, to conduct the business for which the formation of corporations is authorized by said first section ; provided the in- tention so to do shall be or, as the case maybe, shall have been specified among the objects for which such corporation is or shall be formed in its certifi- cate of incorporation.^ See. 315. Same— Must File Certificate of sucli Inten- tion.— It shall and may be lawful for any corporation heretofore irftiorporated for mining purposes, under chapter forty of the laws of eighteen hundred and forty-eight, entitled, " An act to authorize the for- 1 L. 1880, c. 85,§1; 3N. Y. R. S., » L. 1880, c. 85, § 3, as amended 8th ed., p. 1973. by L. 1887, c. 486; 3 N. V. R. S. 2 L. 1880, c. 85, § 2; 3 N. Y. R. 8th ed., p. 1973. S., 8th ed., p. 1973. ACQUIRING TITLE TO LANDS. 607 mation of corporations for manufacturing, mining, mechanical or chemical purposes," or under any amendment of or supplement to the said act, to conduct the business for which the formation of cor- porations is authorized by this act ; provided a cer- tificate signed and acknowledged by a majority of the trustees of the said corporation shall be filed, in the oflBce of the clerk of the county where the orig- inal certificate of incorporation was filed, and a cer- tified copy thereof in the ofiice of the secretary of state, stating that the said corporation intends to avail itself of the provisions of this act, and to carry on the business provided for in this act in addition to the business specified in the said original certificate of incorporation,^ Sec. 316. Same — May acquire Title to Land in same Manner as Railroad Companies.— Any corporation formed under this act for the purpose among other things of supplying cities with water, may acquire title to land for the purposes of their business, in the same manner specified and required in and by the act entitled, " An act to authorize the formation of railroad corporations and to regulate the same," passed April second, eighteen hundred and fifty, and the acts amendatory thereof and supplemental thereto, and such corporations may lay pipes for the purpose of conducting water for the purposes of their busi- ness under any of the navigable waters of this state provided they are so laid as not to interfere with the navigation of such waters. No corporation shall be formed under this act for the purpose of accumu- lating, storing, conducting, furnishing or supplying * L. 1880, c. 85, § 4; 3 N. T. R. S., 8th ed., p. 1973. ■608 WATER COMPANIES. water for domestic, manufacturing or municipal pur- poses in the city of New York.* Sec. 317, Same— May Make Contracts to furnish Water. — Such corporation so formed under this act may ^contract with any corporation in, this state, public or private, to furnish water for any of the purposes in this act mentioned, and every corporation in this tate is hereby authorized to enter in such contracts with such corporations formed under this act.*^ Sec. 318. Same— Corporations may be Organized for boring, etc., for Water— Any three or more persons may organize and form themselves into a corporation, in the manner specified and required in and by chapter 40 of the laws of 1848, entitled, " An act to author- ize the formation of corporations for manufacturing, mining, mechanical, or chemical purposes," and the amendments thereof, and supplements thereto, for the purpose of boring, sinking, digging for, accu- mulating, conducting by underground pipes, conduits and reservoirs, and furnishing water, to be used for power and fire purposes.^ Sec. 319. Same— Eights, Privileges, etc, of such Corporations. — Every corporation so formed and the stockholders thereof shall be subject to all the provisions, duties and obligations contained in the above-mentioned act and the amendments thereof and supplements thereto, and shall be entitled to all' the rights, benefits and privileges thereby conferred.* Sec. 320. Same— Have Power to Lay Pipes, etc., through Streets— Conseift of Public Authorities.— Any corpora- ' L. 1880, c. 85, § 5, as amended " L. 1884, c. 386, § 1 ; 3 N. Y. R. by L. 18S1, c. 472, § 1; 8 ?}■. T. R. S., 8th ed., p. 2054. S., 8th ed., 1974. i L. 1884, c. 386, § 2; 3 N. Y. R. 2 L. 1880, c. 85, § 6, as amended S., 8th ed., p. 2054. hy L. 1881, c. 472, § 2; 3 N. T. N. S., 8th ed., p. 1894. PXJENISHING "WATER TO CITIES — BONDS. 609 tion formed under this act shall have power to lay- its pipes and conduits through and under the streets, avenues, and highways of any city, town, or village where it may be located, with the consent of the municipal authorities of such city, or the local authorities of such town or village, and under such reasonable regulations and conditions as they may prescribe, except in the city of New York, where pipes and conduits may be laid in the streeets and avenues by any such corporation with the consent and by the authority of the commissioners of the sinking fund of said city.^ Sec. 321. Same— May Contract with Cities, etc., to Furnish Water— In New York City, Bonds to be Issued and Money Raised.— Any corporation formed under this act may contract with any city, town, or village in which it may be located, to furnish water for the purposes stated in section one of this act ; but any contract that may be made under the authority hereby conferred, between the city of New York and any such corporation, shall be made only by the commissioners of the sinking fund of said city, upon such terms and conditions as the said commissioners shall deem for the best interest of said city. And the comptroller of the said city of New York is hereby authorized to issue bonds of said city, in suflBcient amount to raise such sums, as the said commissioners of the sinking fund shall certify to be necessary, to execute any contract, made in behalf of said city, under the authority hereby conferred, and a sum suflScient to pay said bonds, with the in- terest thereon, shall be included in the final estimate and raised by taxation, either in the year in which 1 L. 1884, c. 386, § 3; 3 N. T. R. S., 8th ed., p. 2054. 39 610 WATER FOE MINING. said bonds are issued, or in the following year.^ Sec. 322. Same— Water for Mining.— Any three or more persons may organize and form themselves into a corporation in the manner specified and required in and by the act entitled " An atjt to authorize the formation of corporations for manufacturing, mining, mechanical or chemical purposes," passed February seventeenth, eighteen hundred and forty -eight, for the purpose of accumulating, storing, conducting, furnishing and supplying water for mining purposes, and may acquire, take, hold, lease and convey lands^ and water power suitable for those purposes.^ Sec, 323. Same — Corporations Subject to Certain Provisions.— Every corporation so formed and the stockholders thereof shall be subject to all the provisions, duties and obligations contained in the above-mentioned act, and shall be entitled to all the benefits and privileges thereby conferred, except that such corporations shall not be confined in their operations to the county in which their certificate shall be flled.s Sec. 324. Same— Former Incorporations may Proceed hereunder.— It shall and may be lawful for any cor- poration heretofore incorporated for mining purposes under the act mentioned in the first section, to con- duct the business for which the formation of corpo- rations is authorized by said first section, provided the intention so to do shall be specified among the objects for which such corporation is formed in its certificate of incorporation.* 1 L. 1884, c. 386, § 4; 3 N. T. E. " L. 1866, c. 371, § 2; 3 N. Y. E. S., 8th ed., p. 2054. S., 8th ed., p. 1967. 2 L. 1866, c. 371, § 1; 3 N. Y. E. * L. 1866, c. 371, § 3; 3 N. Y. E. S., 8th ed., p. 1967. S., 8th ed., p. 1967. CHAPTER XIX. MANUFACTURING CORPORATIONS- PERFECTING ORGANIZATION, ETC. CEBTrFICATB OF INCOEPOKATION — PILING — PLACE OP BUSI- NESS — CHANGE OP — TAXATION AT — ELECTION OP TRUSTEES — NUMBER OP, INCREASE AND REDUCTION — POWER TO PUR- CHASE — CALL ON STOCKHOLDERS — MAKING BY-LAWS HOLDING STOCK IN OTHER COMPANIES — CERTIPICATE OP INCORPORATION, COPY OP EVIDENCE — EXTRINSIC EVIDENCE LIABILITY OP STOCKHOLDERS — SALT COMPANIES. Sec. 325. Certificate of incorporation — To be filed and recorded. Sec. 326. Same — Fee for filing and recording. Sec. 327. Same — Amended certificate — Filing of. Sec. 328. Places of business — Number. Sec. 329. Same — Principal place of business. Sec. 330. Same — Change of place of business— Filing amended certificate. Sec. 331. Same — Certificate as to — Taxation at. Sbc. 331a. Same — Taxation at — Basis of Taxation. Sec. 332. Trustees— Election of. Sec. 332a. Same — Right to vote at election. Sec. .S32b. Same — By-laws respecting elections. Sec. 3.32c. Same — Powers of supreme court respecting elections. Sec. 332d. Same — Oath of inspectors of election. Sec. 332e. Same— When to he held. Sec. 332f. Same — Setting aside election. Sec. 332g. Same— Character and powers of trustees. Sec. 333. Same — Number of trustees. Sec. 333a. Same— The board — Quorum. Sec. 334. Same— Number of— How increased or reduced. Sec. 334a. Same — Determining number. Sec. 33.5. Same— Eligibility. Sec. 336. Same— Power to purchase— Issuing stock for. '612 FILING CERTIFICATE OF INCOEPOKATION. Sec. 336a. Same — Charging stockholder hy. Sec. 337. Same — Failure to elect — Holding over. Sec. 338. Same — Officers — Designation and appointment of. Sec. .338a. Same — Liability and authority of. Sec. 339. Trustees to make calls on stockholders. Sec. 339a. Same — Enforcing payment. Sec. 339b. Same— Forfeiting stock. Sec. 340. Trustees to make by-laws. Sec. 340a. Same — Force and effect of by-laws. Sec. 341. Stock— Transfer of. Sec. 342. Same — Power to hold stock in other company. Sec. 343. Certificate of incorporation — Copy of to be evidence. Sec. 343a. Same — Evidence of legal residence — Conclusiveness. Sec. 34.3b. Sarae— Extrinsic evidence. Sec. 344. Liability of stockholders. Sec. 344a. Same— Groimds of liability, etc. Sec. 345. Same— Exception as to salt companies. Sec. 346. Same — Certificate of payment — Filing of. Sec. 346a. Same— Certificate to be sworn to. Sec. 325. Certificate of Incorporation— To Ibe Filed and Recorded.— All certificates of incorporation here- after incorporated under any of the laws of this state, required by law to be filed in the office of the secretary of state, or in the office of any county clerk, shall be duly recorded in the office where the same shall be filed, in books specially provided therefor, which books of record shall be properly indexed. The same fees shall be charged for the recording of such certificates as are now provided by law for the recording of deeds. And the Secretary of State, and such county clerk, shall neither file nor record any such certificate in their office, unless the fees therefor are first duly paid. Sec. 326. Slame- Fee for Filing and Recording. — The secretary of state is authorized, by chapter 156 of the Laws of 1882, to charge ten dollars for filing every certificate under the general manufacturing act of 1848 ; and fifteen cents per folio of one hundred 1 L. 1881, c. 224; 3 N. T. E. S., 8th ed., p. 1724. . AMENDING CERTIFICATE. 613 "words, for recording certificates, notices or other papers required by law to be recorded.^ Sec. 337. Same.— Amended Certificate — Filing of. — The directors of any corporation organized under any general act for the formation of companies, in whose original certificate of incorporation any in- formality may exist, by reason of an omission of any matter required to be therein stated, are hereby authorized to make and file an amended certificate or certificates of incorporation, to conform to the general act under which said corporation may be organized ; and upon the making and filing of such amended certificate, the said corporation shall, for all purposes, be deemed and taken to be a corpora- tion from the time of filing such original certificate.^ But nothing in this act contained shall in any manner afiect any suit or proceeding, at the time of filing such amended certificate, pending against said corporation, or impair any rights already accrued.* Sec. 328. Places of Business— Number.— Any certi- ficate hereafter filed, under the provisions of the manufacturing act, may designate one or more places where the company may carry on their busi- ness.* Sec. 339. Same— Principal Place of Business —If any company shall be formed under said act, for the purpose of carrying on any part of its business, in any place out of this state, the said certificate shall so state, and shall also state the name of the town 1 1 N. Y. K. S., 8th ed., p. 562. S., 8thed.,p. 1961. See Chesebrough 2 L. 1870, c. 135, § 1 ; 3 N. T. K. Manuf . Co. v. Coleman, 44 Hun (N. S., 8th ed., p. 1732. Y.) 545 (1887); Knowles v. Duffy, 40 » L. 1870, c. 1.35, § 2; 3 N. Y. K. Hun (N. Y.) 485 (1886); Thurston v. S., 8th ed., p. 1732. Duffy, 38 Hun (N. Y.) 328 (1885). * L. 1853, c. 333, § 1; 3 N. Y. K. 614 CHANGE OP PLACE OF BUSINESS. and county in which the principal part of the business of said company within this state is to be transacted, and said town and county shall be deemed the town place and county in which the operations and business of the company are to be carried on, and its prin- cipal place of business within the meaning of the provisions of this act.^ Sec. 330. Same— Change of Place of Business— Filing amended certificate.— Any company formed under the act entitled " An act to authorize the formation of corporations for manufacturing, mining, mechanical or chemical purposes," passed February seventeen, eighteen hundred and forty-eight, may change its place or places of business by a vote of the stock- holders, representing two-thirds of the stock, at any meeting of the stockholders regularly called, and executing and acknowledging an amended certificate specifying the names of the towns or cities from and to which the business location of the company is to be changed, and in other respects conforming to the original certificate, which amended certificate shall be signed by the president and two -thirds of the directors of the company, and shall be filed in the ofiice of the secretary of state, and in the office of the clerk of the county where the business operations of the company are to be carried on, and published weekly in two papers in the towns or cities from and to which the business operations have been removed, and are to be Carried on, for the term of three months. But the property of said company shall be liable to 1 L. 1857, c. 29, § 3; 3 N. T. R. S., As to sufficiency of statement 8th ed., p. 1962. See Chesebrough under this section, see People v. Manuf. Co. v. Coleman, 44 Hun Beach, 19 Hun (N. Y.) 259 (1879). Pr. 129 (1860). 294 (1848). 3 Northern E. Co. v. Miller, 10 €28 TRUSTEES TO MAKE BY-LAWS. the full amount subscribed.^ Officers of corporations cannot extend time for payment,^ and a receiver cannot sue.^ Sec. 339b. Same— Porfeitiiig stock.— The right to forfeit the stoclc for non-payment of subscriptions does not prevent the trustees, if they prefer so to do, from banging an action for the subscription.* But the trustees cannot forfeit the stock and also sue for the subscription.^ Sec. 340. Trustees to Make By-laws.— The trustees of such company shall have power to raake such pru- dential by-laws as they shall deem proper for the management and disposition of the stock and bus- iness affairs of such company, not inconsistent with the laws of this state, and prescribing the duties of officers, artificers, and servants that may be em- ployed ; for the appointment of all officers, and for carrying on all kinds of business within the objects and purposes of such company .6 Sec. 340a. Same — Force and effect of by-law. — Where a by- law fixes the number of directors to make a quorum, this has reference to the ordinary business of the corporation. And the board may delegate its powers to agents, or to a quorum of less than a majority of the board.^ So they may ratify the unauthorized acts of their agents.^ A formal resolution is 1 Buffalo & J. R. Co. V. Gifford, Barb. (N. T.) 260 (1851); TroyTurn- 87N.T. 294(1882), affirming 22 Hun pike & R. Co. v. McChesney, 21 (N. T.) 359. See also Burr v. Wil- Wend. (N. T.) 296 (1839). cox, 22 K. Y. 551 (1860) ; Buffalo & ^ Small v. Herkimer Manuf. Co., P. R. Co. V. Hatch, 20 N. Y. 161 2 N. Y. 330 (1849). (1859); Strong V. Wheaton, 38 Barb. « L. 1848, c. 40, § 7; 3 N. Y. R. (N. Y.) 622 (1861); Meyer v. Blair, 1 S., 8th ed., p. 1956. Farmers & M. How. (N. Y.) Pr.'k. S., 299 (1884); Bank v. Empire S. D. Co., 5 Bosw. Dorris v. French, 6 T. & C. (N. Y.) (N. Y.) 284 (1859). 581 (1875) ; s. o. 4 Hun (K. Y.) 292. ' Hoyt v. Thompson, 19 N. Y. 2 Weeks v. Silver I. C. M. Co., 8 207 (1859). N. Y. St. Rep. 110 (1887). « Hoyt v. Thompson, 19 K. Y. ' Tucker v. Oilman, 45 Hun {N. 207 (1859) ; Farmers & M. Bank v. Y.) 193 (1S87). Empire Stone Dressing Co., 5 Bosw. * Northern R. Co. v. Miller, 10 (N. Y.) 284 (1859). TKANSFEK OP STOCK. 623 not necessary for the appointment of an agent.^ If an ofBcer fails to enter his claim in the proper books he does not thereby forfeit his claim.''^ A by-law forbidding a member to work at such prices as he chooses to accept, is void.^ Force of by- laws, and when not conclusive.* Acts of corporations, how proved in absence of record absence.^ Where by-laws of a corporation declared that five directors should be a quorum for the transaction of " ordinary busi- ness," the court held that the general business of the corpo- ration thus indicated embraced the power of pledging or assigning assets to secure debts.^ A by-law of a corporation enacted under the express authority of an act of legislature, and in conformity with the power conferred, has the same force as if it were enacted by the legislature.'^ Sec. 341. Stock— Transfer of.— The stock of such company shall be deemed personal estate, and shall be transferable in stich manner as shall be pre- scribed by the by-laws of the company ; but no shares shall be transferable until all previous calls thereon shall have been fully paid in, or shall have been declared forfeited for the non-payment of calls thereon ; and it shall not be lawful for such 1 Munson v. Syracuse G. & C. K., * McDermott v. Board of Police, 103 N. Y. 58 (1886); National P. 5 Abb. (N. Y.) Pr. 422 (1857); Brick Bank v. German A. W. Co., 63 N. Church v. Mayor, etc., of N". Y., 5 Y. Super. Ct. (21 J. & S.) 367 Cow. (N". Y.) 538 (1826); Martin v. (1886); Negley v. Counting R. Co., Niagara F. P. M. Co., 44 Hun (X. Y.) 1 N. Y. St. Eep. 298 (1886); Mc- 130(1887). Naughton v. Osgood, 41 Hun (N. Y.) 6 Morrill v. C. T. Segar M. Co., 19 109 (1886) ; Kelsey t. Sargent, 40 N. Y. Week. Dig. 233 (18S4). Hun (N. Y.) 150 (1886) ; Commer- 6 Hoyt v. Thompson, 19 N. Y. 207 cial Bank v. Kortright, 22 Wend. (1859). (N. Y.) 348 (1839). ' McDermott v. Board of Police, 2 Eider v. Union India Rubber 5 Abb. (K. Y.) Pr. 422 (1857); Brick Co., 5 Bosw. (N. Y.) 85 (1859). Church v. Mayor, etc., of N. Y., 5 8 People V. Benevolent Soc. of O. Cow. (N. Y.) 538 (1826). M., 3 Hun (N. Y.) 361 (1873). 630 ISSXTB AND TRANSFER OP STOCK. company to use any of their funds in the purchase of any stock in any other corporation.^ ' Sec. 341a. Same— Issue— Transfer, etc.— Stock certificates ex- ecuted, but not detached, are a sufficient issue.^ The stock certificates may be transferred in blankj and the holder may- fill in his name.^ Transfer of the stock will be good, although not entered on the transfer books.* A transfer or possession of the cer- tificate is not necessary to pass title.^ A corporation having cancelled the original certificates, which had been transferred on a forged power of attorney, may be compelled to issue new certificates.^ A party who subscribes for stock is liable for debts, although he has paid no part of his subscription.' But not if the subscription was previously fuU.^ A person is liable to pay if, after a call is made, he trans- fers his subscription, or has assigned his stock.^ A call for payment is sufficient notice that a sufi&cient amount of stock has been subscribed.^" A resolution authorizing a forfeiture of stock is void as against creditors.^^ 1 L. 1848, c. 40, § 8; 3 N. T. R. Ins. Co., 3 Paige Ch. (N. T.) 350 S., 8tli ed., p. 19.')6. The last clause (1832). of this section, forbidding the pur- ^ DeCamnont v. Eogert, 36 Hun chase of stock in another corpora^ (N. Y.) 382 (1885). tion, has been modified by. L. 1866, ^ Pollock v. National Bank, 1 N. ch. 838, § 3; 3 N. Y. R. S., 8th ed., Y. 274 (1852). p. 1967. See post, § 341. ' Spear v. Crawford, 14 Wend. 2 Holstead v. Dodge, 51 N. Y. (N. Y.) 20 (1835); 8. c. 28 Am. Dec. Super. Ot. (19 J. & S.) 169 (1884). 513. 3 Leavit v. Fisher, 4 Duer (N. Y.) ' Lathrop v. Kneeland, 46 Barb. 1 (1854); Commercial Bank of Buf- (N. Y.) 432 (1866). falo V. Kortright, 22 Wend. (N. Y.) » Schenectady & S. P. E. Co. v. 848 (1839). Thatcher, 11 N. Y. 102 (1854). 4 Dunn V. Star F. Ins. Co., 19 ^ Harlem C. Co. v. Seixas, 2 Hall, N. Y. Week. Dig. 531 (1884). See (N. Y.) 504 (1829). Veiller v. Brown, 18 Hun (N. Y.) " Slee v. Bloom, 19 Johns, (N.Y.) 571 (1879); Stebbingv. Phoenix Fire 456 (1821); s. c. 10 Am. Dec. 273. ISSUE AND TRANSFER OP STOCK. 631 Creditors maj- enforce contribution from the stockholders, if the officers neglect to do so.^ A purchaser of stock takes it subject to all the equities there may be against the stock.^ Stock cannot be transferred after dissolution.^ When the person signing the certificate of incorporation places opposite his name the number of shares tak,en by him> it is a sufficient signature.* A stockholder, who is indebted to the corporation, may sell and transfer his stock, unless there is a by-la-w prohibit- ing such transfer, until his indebtedness is paid.^ This sec- tion gives the corporation power only to direct how the transfer shall be made.^ Stockholders may compel the transfer of stock.^ The company is liable for wrongfully allowing stock to be transferred on its books,^ or for wrongfully excluding a stock- holder from his rights.^ Dividends belong to the person who is the owner of the stock when they are declared ; but in the absence of notice, the company will be protected in paying them to the person in whose name the stock stands on its books.-"' A share of stock represents the interests of the shareholder in the capital and net earnings of the corporation.^^ In favor of the company, or a receiver of its property, the ^ Briggs V. Penniman, 8 Cow. (N. ^ DriscoU v. West Bradley & C. T.) 387 (1826); s. c. 18 Am. Dec. M. Co., 59 N. Y. 96 (1874). 454. ' Cushman v. Thayer Manuf. J. 2 Mann v. Currie, 2 Barb. (N. Y.) Co., 53 How. (N. Y.) Pr. 60 (1877); 294 (1848) ; James v. Woodrufe, 2 s. c. 76 If. Y. 365; .32 Am. Rep. 315. Den. (N. Y.) 574 (1845). Compare * Brisbane v. Delaware L. & W. Christensen v. Eno, 106 N. Y. 97 R. Co., 25 Hun (N. Y.) 438 (1881); (1887) ; Central Trust Co. v. New 8. c. 13 N. Y. Week. Dig. 184. York C. > L. 1848, c. 40, § 24; 3 N. Y. R. 171 (1862); Wildey v. Whitney, 26 S., 8th ed., p. 1960. See HoUingshead STOCK-BOOK — ENTRIES. 657 Sec. 363a. Same— Prooeedinga.— The requirements of the tibove section are not sufficiently complied witli, where a war- rant of attachment has been issued, and the execution is issued only against the specific property attached ; or where a judg- ment is recovered and an execution is issued and returned in ■another state. The right to establish the stockholder's or trus- tee's liability by an action, a judgment and an execution, is not affected by the fact that the corporation has passed into the hands of a receiver.^ And the filing of a petition in bankruptcy within the year after the debt became due, is not sufficient as the commencement of an action.^ Sec. 364. Stock Books to be Kept— Entries.— It shall be the duty of the trustees of every such corporation or company to cause a book to be kept by the treasurer or clerk thereof, containing the names of all persons, alphabetically arranged, who are or shall, within six years, have been stockholders of such company, and showing their places of residence, the number of shares of stock held by them respectively, and the time when they respectively became the owners of such shares ; and the amount of stock actually paid in ; which book shall, during the usual business hours of the day, on every day except Sunday and the fourth day of July, be open for the inspection of stockholders and creditors of the com- pany, and their personal representatives, at the oflBce or principal place of business of such company in the county where its business operations shall be located ; and any and every such stockholder. How. {N. T.) Pr. 7.5 (1863); Short v. Parrott v. Colby, 6 Hun (N. T.) 55 Medberry, 29 Hun (N. T.) 39 (1883); (1875). Mason v. New York Silk Manuf. i Kocky Mt. Nat. Bk. v. Bliss, 89 Co., 27 Hun (N. T.) 307 (1882); N. T. 338 (1882); Mason v. N. Y. Handy v. Draper, 23 Hun (N. Y.)256 Silk Mf. Co., 27 Hun 307 (1882). (1880) ; Birmingham Nat. Bank v. ^ Birmingham Nat. Bk. v. Mosser, Mosser, 14 Hun (N. Y.) 605 (1878); 14 Em 605 (1878). 42 658 CARE AND CXJSTODT OF STOCK-BOOK. creditor or representative, shall have aright to make extracts from such book ; and no transfer of stock shall be valid for any purpose whatever, except to render the person to whom it shall be transferred liable for the debts of the company, according to the provisions of this act, until it shall have been entered therein as required by this section, by an entry showing to and from whom transferred. Such book shall be presumptive evidence of the facts, therein stated, in favor of the plaintiff, in any suit or proceeding against such company, or against any one or more stockholders. Every officer or agent of any such company, who shall neglect to make any proper entry in such book, or shall refuse or neglect to exhibit the same, or allow the same to be in- spected, and extracts to be taken therefrom, as pro- vided by this section, shall be deemed guilty of a misdemeanor, and the company shall forfeit and pay to the party injured, a penalty of fifty dollars for every such neglect or refusal, and all the damages resulting therefrom : And every company that shall neglect to keep such book open for inspection, as aforesaid, shall forfeit to the people the sum of fifty dollars for every day it shall so neglect, to be sued for and recovered in the name of the people, by the district attorney of the county in which the business of such corporation shall be located ; and when so recovered, the amount shall be paid into the treas- ury of suCh county for the use thereof.^ Sec. 364a. Same — Care and custody — Inspection of. — Any officer of the corporation having charge of the books, though 1 L. 1848, c. 40, § 25; 3 N. T. R. French v. McMillan, 43 Hun (N. Y.) S., Sth ed., p. 1960. See Johnson v. 188 (1887); Kelsey v. Pfaudler P. F. Underbill, 52 N. T. 203 (1873) ; Tracy Co. , 41 Hun (N. Y. ) 20 (1886) ; Herries V. Tates, 18 Barb. (N. Y.) 152 (1854); v. Wesley, 13 Hun (N. Y.) 492 (1878). INSPECTION OP STOCK-BOOK. 659f^^ Tie submit them to the inspection of a stockholder, yet if he refuses to permit him to make extracts, is liable to the penalty.^ The provision of the above section, that a transfer of stock shall not be valid until it is entered in the books, must be confined in its application to the objects sought to be attained,. to wit, the security of creditors, and the information of other stockholders. It does not affect the validity of a transfer, as; between seller and purchaser.^ Said section does not make the book the only, or even the best evidence, that a person sued for the company's debts is a stockholder.^ » Cotheal v. Brouwer,5 N. T. 562 T.) N. C. 172 (1887); People ex rel. (1851). See Tracy V. Yates, 18 Barb. McDonald v. U. S. Mer. Eep. Co., 152(1854). As to inspection of books, 20 Abb. (N. T.) N. C. 192 (1888); see Kelsey v. Pfaudler P. F. Co., 41 Kelsey v. Pfaulder P. Co., 20 N. Y. Hun 20 (1886); s. c. 19 Abb. (N. Y.) 533 (1889). N.C. 127; Kennedy v. Chicago R. I. " Johnson v. Underbill, 52 N. Y. & P. E. Co., 14 Abb. (N. Y.) N. C. 203 (1873). As to refusal to register 326 (1884); Cotheal v. Brouwer, 5 N. transfer, see Robinson v. Nat. Bank T. 566 (1851); People v. Throop, 12 of New Berne, 95 N. Y. 637 (1884). Wend. (N. Y.) 183(1834); People ex « Henries v. Wesley, 13 Hun, 492: rel. Harriman v. Paton, 20 Abb. (N. (1878). CHAPTER XXI. MANUFACTURING CORPORATIONS— POWERS, ETC. GENEEAli POWERS — MORTGAGING PROPERTY AND FRANCHISE — MORTGAGING PROPERTY OUT OP STATE — CONSENT— ISSU- ING STOCK TO PAY FOR PROPERTY — HOLDING STOCK IN OTHER COMPANIES — STATEMENT OP AFFAIRS ON DEMAND — STATEMENT AT ANNUAL MEETING. Sbc. 365. General powers. Sec. 365a. Same — Succession, etc. Sec. 865b. Same — In what corporations to vest. Sec. 365c. Same — Other powers. Sec. 365d. Same — Exercise of banking powers. Sec. 365e. Same — ^Liabllity of stockholder. Sec. 365f. Same — Quorum. Sec. 365g. Same — Forfeiture for non-usure. Sec. 365h. Same— Eight to repeal. Sec. 365i. Same — Dissolution — Trustees in case of. Sec. 365j. Same — Powers of. Sec. 865k. Same — Property of corporations. Sec. 366. Same— Benefits and privileges. Sec. 367. Same— Mortgaging of real or personal estate, to secure debts- Validity of Mortgage— Assent of two-thirds of capital re- quisite. Sec. 367f. Same — Assent — Requisites. Sec. 868. Same— Mortgaging property and franchise. Sec. 369. Same— Mortgaging property out of state— Assent to mortgage- How evinced. Sec. 370. Same— Filing consent of stockholders nunc pro tunc. Sec. 871. Same— May purchase mines, manufactories, etc., and issue stock in payment. Sec. 871a. Same— Scope of act. GENERAL POWEKS — SUCCESSION. 661 Sec. 372. Same — Holding stock in other companies. Sec. 373. Statement of affairs of company — When to be made. Sec. 374. Same — Statement at annual meeting of stockholders. Sec. 365. General Powers.— Every corporation created under this act shall possess the general powers and privileges, and be subject to the liabilities and re- strictions contained in title third, chapter eighteen of the first part of the Revised Statutes, and the provisions of section six, article first, title two, chapter thirteen of the first part of the Revised Stat- utes, shall apply to every such corporation.^ Sec. 365a. Same— Succession, etc.— The provisions of the Revised Statutes part one, title third, chapter thirteen, refer- red to in the above section, here follow. It is provided that every corporation, as such, has power : 1. To have succession, by its corporate name, for the period limited in its charter ; and when no period is limited, perpetually. 2. To sue and be sued, to complain and defend, in any court of law or equity. 3. To make and use a common seal, and alter the same at pleasure. 4. To hold, purchase and convey such real and personal estate as the purposes of the corporation shall require, not exceeding the amount limited in its charter. 5. To appoint such subordinate officers and agents as the business of the corporation shall require, and to allow them a suitable compensation. 6. To make by-laws, not inconsistent with any existing law, for the manageraenb of its property, the regulation of its affairs, and for the transfer of its stock.'-' 1 L. 1848, c. 40, § 26, as amended T. 410 (1882) ; DriscoU v. West. B. by L. 1861,' ch. 170; 3 K T. R. S., & C. M. Co., 59 N. T. 96 (1874); 8th ed., p. 1960. See Tucker v. Bank of Attica v. Manuf's & T. Oilman, 45 Hun (N. Y.) 193 (1887). Bank, 20 N. Y. 506 (1859); Nicoll v. 2 3 N. Y. K. S., 8th ed., p. 1723, New York& E. R. Co., 12 N. Y. 127 § 1. See Cutting v. Damerel, 88 N. (1854) ; Riley v. City of Rochester, 9 662 OTHER POWERS — BANKING POWERS. Sec. 365b. Same— In what corporation to vest.— The powers enumerated in the preceding section shall vest in every cor- poration that shall thereafter be created, although they may not be specified in its charter, or in the act under which it shall be incorporated.^ Sec. 365c. Same— Other powers.— In addition to the powers enumerated in the first section of this title, and to those ex- pressly given in its charter, or in the act under which it is or shall be incorporated, no corporation shall possess or exercise any corporate powers, except such as shall be necessary to the exercise of the powers so enumerated and given.^ Sec. 365a. Same— Exercise of banking powers.— No corpora- tion created or to be created, and not expressly incorporated for banking purposes, shall, by any implication or construc- tion, be deemed to possess the power of discounting bills, notes, or other evidences of debt, of receiving deposits, of buying gold and silver bullion or foreign coins, of buying and selling bills of exchange, or of issuing bills, notes, or N. Y. 69 (1853) ; Farmers L. & T. Co. McCullough v. Moss, 5 Den. (N. Y.) V. Curtis, 7 N. Y. 471 (1852) ; Hay v. 57V (1846). echoes Co., 2 N. Y. 160 (1849); 2 3 N. Y. K. S., 8th ed., p. 1723, Bingham v. Weiderwax, 1 N. Y. 509 § 3. See Curtis v. Leavitt, 15 N. Y. (1848) ; Bank of Havana v. Wick- 54 (1857) ; Talmadge v. Pell, 7 N. Y. ham, 7 Abb. (N. Y.) Pr. 139 (1857); 328 (1852); Thompson v. Schermer- Barton v. Port. J. & U. F. P. K. Co., -horn, 6 N. Y. 96 (1851); Halstead v. 17 Barb. (N. Y.) 404(1854); Boom v. Mayor, etc., N. Y., 3 N. Y. 433 City of Utica, 2 Barb. (N. Y.) 107 (1850); Plimpton v. Bigelow, 12 Abb. (1848); Brady v. Mayor, &c., of (N. Y.) N. C. 229 (1883), note; Green Brooklyn, 1 Barb. (N.Y.) 590 (1847); v. N. Y. Cent. E. Co., 12 Abb. Chautauqua Co. Bank v. Eisley, 4 (N. Y.) Pr. N. S. 480 (1872); Farmers Den. (N. Y.) 480(1847); Hodges v. L. & T. Co. v. Carroll, 5 Barb. City of Bufealo, 2 Den. (N. Y.) 112 (N. Y.) 613 (1849); Moss v. RossieL. (1846); Moss f. Rossie L. M. Co., 5 M. Co., 5 Hill (N. Y.) 137 (1843); Hill (N. Y.) 137 (1843); Thompson McGraw v. Cornell University, 45 V. Erie R. Co., 42 How. (N. Y.) Pr. Hun (N. Y.) 354 (1887); Rome Sav. 91 (1871); Barry V. Merchants Exch. Bank v. Kramer, 32 Hun (N. Y.) 272 Co., 1 Sandf. Ch. (N. Y.) 280 (1844). (1884); Feeny v. Peoples P. Ins. Co., 1 3 N. Y. E. S., 8th ed., p. 1723, 2 Robt. (N. Y.) 600 (1862); People v. § 2. See New York F. Ins. Co. v. Manhattan Co., 9 Wend. (N. Y.) 392 Sturges, 2 Cow. (N. Y.) 664 (1824); (1832). LIABILITY OF STOCKHOLDERS. 663 other evidences of debt, upon loan, of for circulation as money.^ Lee. 365e. Same— Liability of stockholder.— When the whole capital of a. corporation shall not have been paid in, and the capital paid shall be insufficient to satisfy the claims of its creditors, each stockholder shall be bound to pay on each share held by him the sum necessary to complete the amount of such share, as fixed by the charter of the company, or such proportion of that sum as shall be required to satisfy the debts of the company.^ Sec. 365f. Same— Quorum.— When the corporate powers of any corporation are directed by its charter to be exercised by any particular body or number of persons, a majority of such body or persons, if it be not otherwise provided in the charter shall be a sufficient number to form a quorum for the trans- action of business ; and every decision of a majority of the persons duly assembled as a board, shall be valid as a corpo- rate act.^ Sec. 365g. Same — Porfeiturefornon-usuer.— If any corporation hereafter created by the legislature shall not organize and commence the transaction of its business within one year from the date of its incorporation, its corporate powers shall cease*. Sec. 365h. Same— Right to repeal. — The charter of every corporation that shall hereafter be granted by the legislature, 1 3 N. Y. R. S., 8th ed., p. 1723, (1850); Tallmadge v. Kshkill I. Co., §4. See People V. Mut. Trust Co., 4 Barb. (N. Y.) 383 (1848); Cutting 96 N. Y. 13(1884); N. Y. Life Ins. & v. Damerel, 23 Hun (S. Y.) 339 T. Co. V. Beebe, 7 N". Y. 367 (18-52); (1880). Curtis V. Leavitt, 17 Barb. (N. Y.) » 3N. Y. R. S., 8th ed., p. 1724, 316(1853); Amer. L. las. & T. Co. § 6. See People's Bank v. St. T. Dobbin, Hill & Den. (N. Y.) 252 Anthony's R. C. Ch., 39 Hun (N. T.) (1843); Auburn Sav. Bk. v. Brinker- 498, 502 (1886); Porter v. Robinson, hoff, 44 Hun (N. Y.) 145 (1887); 30 Hun (N. Y.) 209 (1883). Rome Sav. Bank v. Cramer, 32 Hun * N. Y. R. S., 8th ed., p. 1724, § 7. (N. Y.) 272 (1884); People v. Man- See People v. Troy House Co., 44 hattan Co., 9 Wend. (N. Y.) 392 Barb. (N. Y.) 631 (1865); People v. (1832). Bowen, 30 Barb. (N. Y.) 26 (1859); 2 3 N. Y. R. S., 8th ed., p. 1723, Johnson v. Bush, 3 Barb. Ch. (N. § 5. See Mann v. Pentz, 3 N. Y. 422 Y.) 237 (1848). 664 DISSOLUTION — TRUSTEES ON. shall" be subject to alteration, suspension and repeal, in the discretion of the legislature.^ Sec.365i. Same— Dissolution. 2 — Trustees in case of . — Upon the dissolution of any corporation, created or to be created, and unless other persons shall be appointed by the legislature, or by some court of competent authority, the directors or man- agers of the affairs of such corporation at the time of its dis- solution, by whatever name they may be known in law, shall be the trustees of the creditors and stockholders of the cor- poration dissolved, and shall have full power to settle the affairs of the corporation, collect and pay the outstanding debts, and divide among the stockholders the moneys and other property that shall remain, after the payment of debts- and necessary expenses.^ Sec. 365j. Same— Powers of.— The persons SO Constituted trustees shall have authority to sue for and recover the debts and property of the dissolved corporation, by the name of the trustees of such corporation, describing it by its corporate name, and shall be jointly and severally responsible to the creditors and stockholders of such corporation to the extent of its property and effects that shall come into their hands.* Sec. 36Sk.— Property of corporations. — The provisions of sec- tion six, article first, title two, chapter thirteen of the first part of the Revised Statutes, referred to in section three 1 3 N. Y. R. S., 8th ed., p. 1724, 302, 305 (1872); Towar v. Hale, 46 § 8. See Troy & R. R. Co. v. Kerr, Barb. {N. T.) 365 (1866); Hoffman 17 Barb. (N. Y.) 603 (1854); White v. Van Vostrand, 42 Barb. (N. Y.) V. Syracuse & U. R. Co., 14 Barb. 174 (1864); Owen v. Smith, 31 Barb. (N. Y. ) 559 (1853) ; Northern R. Co. (N. Y. ) 645 ( 1860) ; Tinkham v. Borst, V. Miller, 10 Barb. (N. Y.) 260 (1851) ; 31 Barb. (N. Y.) 411 (1860) ; Huntley Suydam v. Moore, 8 Barb. (N. Y.) v. Beecher, 30 Barb. (N. Y.) 587 364 (1850); Hartford &N. H. R. Co. (1859); McCuUough v. Moss, 5 Den. V. Croswell, 5 Hill (N. Y.) 383 (1843); (N. Y.) 574 (1846); Kane v. Blood- N. Y. Cab Co.«v. Chambers St. R. good, 7 Johns. Ch. (N. Y.) 128 (1823) Co.,40Hun(N. Y.)31(1886); People * 3 N. Y. R. S., 8th ed., p. 1724| ex rel. Sturges v. Keese, 27 Hun (N. § 10. See Heath v. Barmore, 501 N. Y.) 483 (1882). T. 305 (1872); Owen v. Smith, 31 2 As to disolutiou of corporations .Barb. (N. Y.) 645 (1860); Merchant's see ante, §§ 126-164. Bank v. Bliss, 1 Robt. (N. Y.) 405- » 3 N. Y. R. S., 8th ed., p. 1724, (1863). § 9. See Heath v. Barmore, 50 N. Y. BENEFITS AND PEIVILEGES. 665 hundred and sixtyJour above, are as follows : " The real estate of all incorporated companies liable to taxation, shall be assessed in the town or ward in which the same shall lie, in the same manner as the real estate of individuals. All the personal estate of every incorporated company liable to taxation on its capital shall be assessed in the town or ward where the principal office or place for transacting the finan- cial concerns of the company shall be ; or if such company have no principal office or place for transacting its financial concerns, then in the town or ward where the operations of such company shall be carried on." ^ Sec. 366. Same— Benefits and Privileges.— Every cor- poration so formed shall be entitled to all the ben- efits and privileges conferred by the before-mentioned act, and may contract and transact its business with any railway company or other person engaged in the operation of any railway in United States or Canada, but shall otherwise be subject to all the provisions, duties and obligations in the said act contained.^ Sec. 367. Same — Mortgaging of Real or Personal Estate, to Secure Debts— Talidity of Mortgage— Assent of Two-thirds of Capital Requisite.— Any corporation formed under the said act, passed February seven- teenth, eighteen hundred and forty-eight, or of the acts amending or extending the said act, may secure the payment of any debt heretofore contracted, or which may be contracted by it, in the business for which it was incorporated, by mortgaging all or any part of the real or personal estate of such corpo- ration ; and every mortgage so made shall be as valid to all intents and purposes, as if executed by an individual owning such real or personal estate, pro- i 2 N. Y. K. S., 8th ed., p. 1094, "' L. 1873,c. 814, §2; 3X. Y. E. S.» § 6. 8th ed., p. 1971. 666 MORTGAGING PROPEKTY AND FRANCHISE. Tided, that the written assent of the stockholders, owning at least two -thirds of the capital stock of such corporation, shall first be filed in the office of -the clerk of the county where the mortgaged prop- erty is situated.^ * A mortgage can be executed to pay debts only ; 2 and the receiver of a corporation may sue to set aside its mortgage where the requisite assent was not procured, or the mortgage was given for a pur- pose other than to pay the debts of the corporation, and the assent of the company as owner of pledged stock is not sufficient.^ Sec. 368. Same — Mortgaging Property and Franchise. — ^Any company formed under the act entitled, " An act to authorize the formation of corporations for manufacturing, mining, mechanical or chemical purposes," passed February seventeenth, eighteen hundred and forty-eight, or of the acts amending or extending said act, may secure the payment of any 1 L. 1864, c. 517, § 2, as amended ^ Carpenter v. Black H. G. Mining by L. 1871, c. 481; 3 N. T. R. S., 8th Co., 65 N. Y. 43 (1875). ed., p. 1965. See Lord v. Yonkers ^ Vail v. Hamilton, 20 Hun (N. Y.) Fuel Gas. Co., 99 N. Y. 547 (1885) ; 355 (1880). See Coman v. Lakey, 80 Paulding v. Chrome Steel Co., 94 N. N. Y. 345 (1880). Y. 3-34 (1884) ; Vail v. Hamilton, 85 As to the ratification of an invalid N. Y. 453 (1881) ; Denike v. New mortgage see Lord v. Yonkers F. G. York R. L. & C. Co., 80 N. Y. 599 Co., 99 N. Y. 547 (1885); Rochester (1880); Coman v. Lackey, 80 N. Y. Sav. Bk. v. Averell, 96 N. Y. 467 345 (1880) ; Greenpoint Sugar Co. v. (1884) ; Carpenter v. Black Hawk G. Whitin, 69 N. Y. 328 (1877); Car- M. Co., 65 N. Y. 43 (1875); Central penter v. Black Hawk Gold Mine Gold M. Co. v. Piatt, 3 Daly (N. Y.) Co., 65 N. Y.«43 (1875); Martin v. 263(1870); Martin v. Niagara Falls Niagara Falls Paper Manuf. Co. 44 P. Co., 44 Hun (N. Y.) 130 (1887); Hun(N.Y.) 130,133(18871; Roches- Astor v. Westchester Gas Co., 33 ter Sav. Bank v. Averell, 26 Hun (N. Hun (N. Y.) 333 (1884) ; Graham v Y.) 643 (1882); s. c. 96 N. Y. 467; Atlanta Hill Co., N. Y. Da. Reg. Greenpoint Sugar Co. v. Kings Co. Oct. 14, 1884; Jones v. Guaranty & -Manuf. Co., 7 Hun(N. Y.) 44(1876). Indemnity Co., 101 U. S. (U Otto) 622 (1879); bk. 25 L. ed. 1030. MORTGAGING PROPBKTY OUT OF STATE. 667 debt heretofore contracted, or whicli may be con- tracted by it, in the business for which it was incor- porated, by mortgaging all or any part of the goods and chattels of such corporation, and also the fran- chises, privileges, rights and liberties thereof, pro- vided that the written assent of a majority of the stockholders, owning at least two thirds of the cap- ital stock of such corporation, shall first be filed in the office of the clerk of the county where the cor- poration has its principal place of business, and also in the office of the clerk of the county where such goods and chattels are situated.^ Sec. 369. Same— Mortgaging Property out of State — Assent to Mortgage— How Evinced.— In all cases where a corporation shall have heretofore made, or shall hereafter make a mortgage of any of its real estate situated beyond the limits of this state, and the re- cording officer of the county in which such real estate is situated shall have refused, or shall refuse to file or record the assent as now required by law, it is hereby declared to be and to have been a suf- ficient filing of the assent of the stockholders, if such assent shall have been or shall hereafter be filed in the office of the clerk of the county where the com- pany has its principal place of business within this state.2 Sec. 370. Same— Filing Consent of Stockholders Nunc pro tunc. — In all cases where a corporation has here- tofore executed a mortgage upon any of its real 1 L. 1878, c. 163, § 1; 3 N. T. K. 334 (1884); Graham v. Atlanta HiU S., 8th ed., p. 1973. See Lord v. Co., N. Y. Da. Reg., Oct. 14, 1884. Tonkers F. G. Co., 99 N. T. 547 ^L. 1869, c. 706, § 1; 3 N. Y. K. {1885); s. c. 101 N. T. 614; Pauld- S., Sth ed., p. 1970. ing V. Chrome Steel Co., 94 N. Y. 668 PAYMENT FOR PEOPBETY IN STOCK. estate, and the written consent of persons owning- two-thirds or more of the capital stock of such cor- poration shall have been given to the mortgaging of such real estate, at or before the time of the giving of such mortgage, but from accident or mistake the said consent has not been filed in the office of the clerk of the county in which such real estate is situated, as required by law, it shall be lawful for the clerk of such county to receive and file in his office the written consent so given, accompanied by the affidavit of any officer or stockholder of such cor- poration showing that such consent was in fact made and signed at the time the same purports to have been made and signed, and that the signatures there- to are genuine ; and in such case, on filing such con- sent and affidavit, the said mortgage shall have the like validity and effect from and as of the time of the filing of such consent and affidavit as if the same had been given at that time, and had been accom- panied or preceded by the filing of such consent ; provided, that nothing herein contained shall affect any action or legal proceeding now pending, or im- pair any intermediate right acquired by lien or other- wise in or to the property of the corporation affected by such mortgage.! Sec. 371. Same— May Purchase Mines, Manufactories, etc., and Issue Stock in Payment.— The trustees of such company may purchase mines, manufactories, and other property necessary for their business, and issue stock to the amount of the value thereof in payment therefor; and the stock so issued shall be declared and taken to be full stock, and not liable 1 L. 1875, c. 88, § 1; 3 N. T. R. S., Bank v. Averell, 96 N. T. 467 (1884.) 8th ed., p. 1971. See Rochester Sav. SCOPE OF ACT. 669 to any further calls; neither shall the holders thereof be liable for any further payments under the pro- visions of the tenth section of the said act ; but in all statements and reports of the company, to be published, this stock shall not be stated or reported as being issued for cash paid into the company, but shall be reported in this respect according to the fact.i Sec. 371a. Same— Scope of act— This section does not au- thorize any increase of the capital stock of the corporation, but only the payment of stock in property instead of in cash ; SLiid when fairly so paid for, although it be the entire capital stock, the holder is not liable to creditors under section ten^ of the act of 1848.^ Services may be paid for in stock.* But if the property is grossly overvalued, with intent to evade the statute, a creditor may treat the transaction as fraudulent, and recover against a holder of the stock. And where the entire capital stock of a corporation, amounting to $2,500,000 was issued as full paid stock in payment for certain patent rights and other property, upon the agreement of the sellers to re-deliver a certain number of shares to the corporation, to be sold and otherwise disposed of for its benefit, and the same were so re-delivered; it was held, in an action by a ■creditor to render a stockholder personally liable under section 1 L. 1853, c. 333, § 2; 3 N. Y. E. Andrews, 46 N. Y. 589, 592 (1871); S., 8th ed., p. 1961; Whitaker v. National Tube Works Co. v. Gilfil- Masterton, 106 N. Y. 277 (1887); Ian, 46 Hun (N. Y.) 248 (1887); Lake Superior Iron Co. v. Drexel, Thurber v. Thompson, 21 Hun (N. <)0 N. Y. 87 (1882); Pier v. Han- Y.) 472 (1880); People v. Twaddell, more, 86 N. Y. 95 (1881); Bonnell 18 Hun (N. Y.) 427 (1879); Hill v. v. Griswold, 80 ISr. Y. 128(1880); s. Nye, 17 Hun (N. Y.) 207 (1879); c. 89 N. Y. 122; Douglass v. Ire- Nelson v. Drake, 14 Hun (N. Y.) aand, 73 N. Y. 100 (1878); Leslie v. 465, 468 (1878). Knickerbocker Life Ins. Co., 63 N. ^ gge ante, § 343. Y. 93 (1875) ; Town of Duanesburg » Sehenck v. Andrews, 46 N. Y. T. Jenkins, 57 N. Y. 177, 193 (1874) ; 589 (1871). Arthur v. Griswold, 55 N. Y. 400, * Veeder v. Mudgett, 95 N. Y. 295 407 (1874); Boynton v. Hatch, 47 (1884). :N. Y. 225, 228 (1872); Schenck v. 670 HOLDING STOCK IN OTHEK COMPANIES. ten of the act of 1848, that the question was properly sub- mitted to the jury, as to whether the purchase and issuing of the stock were in good faith, or merely a scheme to evade the statute.^ Where the annual report of a company states a certain sum as the amount of capital paid in, without stating that a por- tion was paid for property as allowed by the above section^ theimpoit of the statement is that such a sum was paid in, ia cash ; and if a portion was thus paid for property, the report is false, and if willfully and knowingly made, the trustees signing' it are liable under section fifteen^of the act of 1848.^ Sec. 372. Same— Holding Stock in otlier Companies. — It shall be lawful for any company heretofore or hereafter organized under the provisions of this act, or the act hereby amended, to hold stock in the capital of any corporation engaged in the business, of mining, manufacturing or transporting such ma- terials as are required in the prosecution of the bus- iness of such company, so long as they shall furnish or transport such materials for the use of such com- pany, and for two years thereafter, and no longer ; and also to hold stock in the capital of any cor- poration which shall use or manufacture materials, mined or produced by such company ; and the trustees of such company shall have the same power with respect to the purchase of such stock and issuing- stock therefor as are now given by the law with ^ See Lake Superior Iron Co. v. 7, 1884; Draper v. Beadle, 16 Wk. Drexel, 90 N. Y. 87 (1882). See also Dig. 475 (1883). Blake v. Grisw^ld, 103 X. Y. 429 2 gee ante, § 350. (1886); Douglass v. Ireland, 73 X. ^ See ante, § 350; Pier v. Han- T. 100 (1878) ; Boynton v. Andrews, more, 86 N. T. 95 (1881). See, also, 63N.T. 93(1875); Boyntonv. Hatch, Whitaker v. Masterton, 106 N. Y. 47 N. Y. 225 (1872); Thurber v. 277 (1887); Bonnell v. Griswold, 68 Thompson, 21 Hun (N.Y.) 472 (1880); N. Y. 294 (1877); s. c. 80 N. T. 128; Bolz V. Bidder, 19 Wk. Dig. 463 Blake v. Wheeler, 18 Hun (N. Y.> (1884); s. c. N. Y. Da. Keg., Aug. 496 (1879); Pier v. George, 17 Hun (N. Y.) 207 (1879). STATEMENT OP APPAIRS OP COMPANY. 671 respect to the purchase of mines, manufactories and other property necessary to the business of manu- facturing, mining and other companies. But the capital stock of such company shall not be increased without the consent of the owners of two-thirds of the stock to be obtained as provided by sections twenty-one and twenty-two of the act hereby amended.^ Sec, 373.— Statement of Affairs of Company— When to be made.— Whenever any person or persons owning- five per cent, of the capital stock of any company, not exceeding one hundred thousand dollars, or any person or persons owning three per cent, of the cap- ital stock of any company exceeding one hundred thousand dollars, formed under the provisions of this act, shall present a written request to the treas- urer thereof that they desire a statement of the affairs of such company, it shall be the duty of such treasurer to make a statement of the affairs of said company, under oath, embracing a particular account of all its assets and liabilities, in minute detail, and to deliver such statement to the person who pre- sented the said written request to said treasurer, within twenty days after such presentation, and shall also at the same time and place keep on file in his office, for six months thereafter, a copy of such statement, which shall at all times during business hours be exhibited to any stockholder of said com- pany demanding an examination thereof; such treas- urer, however, shall not be required to deliver such statement in the manner aforesaid, oftener than once in any six months. If such treasurer shall 1 L. 1866, c. 838, § 3, as amended by L. 1876, c. 858; 3 N. Y. K. S., 8th ed., p. 1967. 672 STATEMENT OF ANNtTAL MEETING. neglect or refuse to comply witli any of the provi- sions of this act, he shall forfeit and pay to the per- son presenting said written request the sum of fifty dollars, and the further sum of ten dollars for every twenty-four hours thereafter until such statement shall be furnished, to be sued for and recovered in any court having cognizance thereof.^ Sec. 374. Same— Statement at Annual Meeting of Stockholders.— Should not any such written statement as is required by section one of this act be de- manded, during the year preceding the annual meet- ing of the stockholders of any company, formed under the provisions of this act, for the election of directors or trustees, it shall be the duty of the treasurer of every such company to prepare and •exhibit to the stockholders then and there assem- bled, a general statement of the assets and liabil- ities of such company,^ 1 Added by L. 1854, c. 201, and McMillan, 43 Hun (N. T.) 188 (1887). amended by L. 1862, c. 472, § 1; 3 2 L. 1862, c. 472, § 2; 3 N. Y. R. N. Y. R. S., 8th ed., p. 1960. S., 8th ed., p. 1961. See French v. A statement in detail of assets and McMillan, 43 Hun (N. Y.) 189 (1887.) liabilities is suflScient. French v. PABT m. COEPOBATION LAWS OF NEW JEBSEY AND WEST VIRGINIA. CHAPTER XXII. NEW JERSEY CORPORATIONS— POWERS. GENEEAIi POWERS — EXPRESSLY GIVEN — LIABILITT OP STOCKHOLDERS — REPEAL OP CHARTER — PERSONAL LIA- BILITY OP DIRECTORS. Sec. 375. Powers in general. Sec. 376. Same — Vesting of. Sec. 377. Same — Must be expressly given. Sec. 378. Banking powers — Not implied. Sec. 379. Stockholders — Liability to creditors. Sec. 380. Repeal of charter — Reservation of right. Sec. 381. Dividends — Made from sm^lus or profits— Personally liable of directors for debts. Sec. 382. Company specially chartered — Powers of. Sec. 883. Company organized under any general law — Powers of. Sec. 375. Powers in General. — Every corporation, as such, shall be deemed to have power : I. To have succession, by its corporate name, for the period limited in its charter or certificate of incorporation, and when no period is limited, perpetually, except so far as the constitution otherwise provides concerning banks or money corporations ; II. To sue and be sued, complain and defend in any court of law or equity ; III. To make and use a common seal, and alter the same at pleasure ; IV. To hold, purchase and convey such real and personal estate as the purposes of the corporation shall require, not ex- 1 The New Jersey Corporation act laws for the years succeeding that is taken from Revision of Statutes of date. 1877, p. 174-197, and the pamphlet ^T6 POWERS OF — VESTING. ceeding the amount limited in its charter, and all other real •estate which shall have been bona fide mortgaged to the said ■coinpany by way of security, or conveyed to them in satis- faction of debts previously contracted in the course of deal- ings, or purchased at sales upon judgment or decree which shall be obtained for such debts ; and to mortgage any such real or personal estate with their franchises ; the power to hold real and personal estate shall include the power to take the same by devise or bequest ; provided, however, that nothing herein contained shall prohibit manufacturing or trading corporations from accommodating their customers by making payments or disbursements out of any sum of money received from such customers ; V. To appoint such subordinate ofBcers and agents as the business of the corporation shall require, and to allow them a suitable compensation ; VI. To make by-laws not inconsistent with the constitu- tion or laws of the United States or of this state, fixing and altering the number of its directors for the management of its property, the regulation and government of its affairs, and for the transfer of its stock, with penalties for the breach thereof not exceeding twenty dollars ; VII. To wind up and dissolve itself, or be wound up and dissolved in manner hereafter mentioned. Sec. 376. Same— Testing of.— The powers enumerated in the preceding section shall vest in every corporation that shall hereafter be created, although they may not be specified in its charter, or in the act or certificate under which it shall be incorporated. Sec. 377. Same— Must be Expressly Given.— In addition to the powers enumerated in the first section of this act, and to those exp^pssly given in its charter, or in the act or certificate under which it is or shall be incorporated, no corporation shall possess or exercise any corporate powers, except such as shall be necessary to the exercise of the powers so enumer- ated and given. Sec. 378. Banking Powers— Not Implied.— No corpora- tion created or to be created shall, by any implication or con- LIABILITY OP STOCKHOLDBES — DIVIDENDS. 677 struction, be deemed to possess the power of discounting bills, notes or other evidences of debt, of receiving deposits, of buying gold or silver bullion, or foreign coins, of buying and selling bills of exchange, or of issuing bills, notes or other evidences of debt, upon loan or for circulation as money, un- less such corporation is or shall be expressly incorporated for banking purposes, or unless such powers are or shall be expressly given in its charter. Sec. 389. Stockholders— Liability to Creditors.— Where the whole capital of a corporation shall not have been paid in, and the capital paid shall be insuiEcient to satisfy the claims of its creditors, each stockholder shall be bound to pay on each share held by him the sum necessary to complete the amount of such share, as fixed by the charter of the company, or such proportion of that sum as shall be required to satisfy the debts of the company. Sec. 380. Repeal of Charter— Reservation of Right. — The charter of every corporation which shall hereafter be granted by or created under any of the acts of the legislature, shall be subject to alteration, suspension and repeal, in the discretion of the legislature. Sec. 381. Dividends— Made from Surplus or Profits- Personal Liable of Directors for Debts. — It shall not be lawful for the directors of any bank, or moneyed or manufac- turing corporation in this state, or corporation organized under this act to make dividends, except from the surplus or net profits arising from the business of the corporation, nor to divide, withdraw, or in any way pay to the stockholders or any of them, any part of the capital stock of the said corporation, or to reduce the said capital stock, except according to this act, without the consent of the legislature ; and in case of any violation of the provisions of this section the directors under whose administration the same may happen shall, in their indi- vidual and private capacities, jointly and severally, be liable at any time within the period of six years after paying any such dividend to the said corporation, and to the creditors thereof, in the event of its dissolution or insolvency, to the full amount the dividend made or capital stock so divided, withdrawn, or 678 CHARTER AND POWERS. paid out, or reduced, with legal interest on the same from the time such liability accrued; provided, that any of the said directors who may have been absent when the same was done or who may have dissented from the act or resolution by which the same was done, may respectively exonerate them- selves from such liability by causing their dissent to be en- tered SL": large on the minutes of the said directors, at the time the same is done, oi- forthwith after they shall have notice of the same, and by causing a true copy of the dissent 30 entered on the minutes to be published, within two weeks after ths same shall have been entered on said minutes, in some pi'bHc newspaper published in the county where the said corporation has its office or place of business ; and if none be published in such county, then in a newspaper printed in an adjoining county, and circulating in the neigh- borhood of such office or place of business of said corpora- tion ; and provided also, that this section shall not be con- strued to prevent a division and distribution of the capital stock of the corporation, which shall remain after the pay- ment of all its debts, upon the dissolution of the corporation or the expiration of its charter. Sec. 382, Company Specially Chartered— Powers ol.— If any act shall hereafter be passed, by the legislature of this state which shall by its terms enact that any person therein named or described shall be incorporated by any name and for any purpose therein stated, such corporatibn shall immediately be vested with and possessed of all powers in this act specified and set forth, subject to all provisions and restrictions therein contained, unless such special act incorporating the same shall otherwise in whole or in part direct to the contrary. Sec. 383. Company Organized under any General Law — Powers of. — Any corporation organized under any general law of the legislature now or hereafter to be passed, shall, in addition to the powers and restrictions thereon to which it may become subject or of whicli it shall be possessed by virtue of its organization and the act authorizing the same, be additionally possessed of all powers and be subject to all restrictions thereon in this act contained, as far as the same are consistent with the act under which it may, as aforesaid, be organized. CHAPTER XXIII. NEW JERSEY CORPORATIONS— FORMATION, CON- STITUTION, ALTERATION AND DISSOLUTION. PURPOSES POE "WHICH POKMBD — CERTIFICATE — SPILING AMENDED CERTIPICATE — CERTIPICATE AND COPY AS EVI- Di!NCE — HOLDING REAL ESTATE OUT OP STATE — ^DIRECT- OES, QUALIFICATIONS AND ELECTIONS — OFFICERS, WHEN CHOSEN — ^VOTE BY PROXY — MEETING, HOW CALLED — IN CREASE OF STOCK — COMMON AND PREFERRED STOCK — HTPOTHECATED STOCK — ASSESSMENT OF STOCK — PENALTY FOR NON-PAYMENT — ^INCREASE OF STOCK AND SHARES — PAYMENT OF STOCK, CERTIFICATE — REDUCTION OF STOCK —CHANGE OP NATURE OF BUSINESS — DISSOLUTION OP CORPORATION. Sec 384. Purposes for which corporations may be formed. Sbc. 385. The certificate of incorporation — Contents — Authentication — filing and recording. Se3. 386. Same — Amended certificate — Filing. Sec. 387. Same — Certificate and certified copy — Evidence. Sic. 388. Corporate existence — Begins when certificate is filed. Sec. 389. All companies governed by this act. Sic. 390. Carrying on business out of state — Holding real estate out of State. Sic. 391. Directors shall be shareholders — Officers — Secretary and treasurer. Sic. 392. Directors — When to be chosen — Selection of president. Sec. 393. Secretary and treasurer — When chosen — Secretary to be sworn- Treasurer to give bond. Sec. 394. Same — Other officers. Sec. 395. Vacancies — How filled. Sec. 396. Vote by proxy— Meetings— Quorum. Sec. 397. Meetings — How called. ^ Sec. 398. Certificate of stock. Sec. 399. Increase of stock — Method of. 680 PUEPOSES FOR WHICH POKMED. Sec. 400. Common and preferred stock. Sec. 401. Transfer of shares — Hypothecation — Contents of certificate— What transfer must express. Sec. 402. Assessment of stock. Sec. 403. Same — Non-payment of — Penalty. Sec. 404. Same — Proceedings for sale of shares. Sec. 405. Payment of capital stock— Filing c«rtificate of. Sec. 406. Increase of stock — Certificate of — To he filed. Sec. 407. Failure or refusal to make certificates — Penalty. Sec. 408. Keduction of stock — Change of Nature of business. Sec. 409. Dissolution of corporation — Proceedings for. Sec. 410. Alteration of act — Reservation by legislature. Sec. 384. Purposes for which Corporations may he Formed.— It shall be lawful for three or more persons to asso- ciate themselves into a company to carry on any kind of msin- ufacturing, mining, chemical, trading or agricultural busii^fiss, agricultural fairs and exhibitions for the encouragement of competition in agriculture, horticulture, breed of stock and development of speed in horses, the transportation of goods, merchandise or passengers, upon land or water, inland naviga- tion, the building of houses, vessels, wharves or doc^s, or other mechanical business, the reclamation and improvement of submerged lands, the improvement and sale of lands ( the examination, insurance and guaranty of the title to la(ads ; the constructing, maintaining and operating (except in a tbwn or city in which water-works are established and ownei by the corporate authorities) works for the special purpose of supplying water for extinguishing fires in mills, factoiles, manufacturing establishments and other buildings, ihe damming of rivers and streams, including the storage, tra\is- portation and sale of water, and water-power and privileges, with the right to take rivulets, raceways and lands, and erect and maintain dams, reservoirs, raceways, mills, manufactories and other erections, and lease, mortgage, sell and convey the same, or any part thereof, the making, purchasing and selling manufactured articles, and also of acquiring and disposing of rights to make and use the same, the renting buildings and steam or other power therewith, the cutting and digging peat, stone, marl, elay, or other like substance, and dealing in the same, manufactured or unmanufactured, or any wholesale or CERTIFICATE OF INCOEPOKATIOK — CONTENTS. 681 retail mercantile business or any lawful business or purpose whatever, upon making and filing a certificate in writing of their organization, in manner hereinafter mentioned ; provided, that nothing herein contained shall be construed to authorize the formation of any insurance company (except companies for the insurance or guaranty of the title to lands or any estates or interests in lands), banking company, savings bank, or other corporation intended to derive profit from the loan and use of money, nor of any railroad company, turnpike company, or any other company which shall need to possess the right of taking and condemning lands, except for the damming of rivers and streams, and for purposes appertaining thereto, as hereinbefore specified; and further provided, that this act shall not apply to any river or stream of a less width and volume of water than the Delaware river, ordinarily, at Phillipsburg, in this state, below its junction with the Lehigh, nor to any river or stream below the head of tide-water in the same.^ Sec. 385. The Certificate of Incorporation— Contents — Authentication — Filing and Recording, — Such certificate in writing, shall set forth, I. The name assumed to designate such company, and to be used in its business and dealings ; II. The place or places in this state or elsewhere where the business of such company is to be conducted, and the objects for which the company shall be formed.^ III. The total amount of the capital stock of such com- pany, which shall not be less than two thousand dollars the amount with which they will commence business, which shall not be less than one thousand dollars, and the number of shares into which the same is divided, and the par value of each share ; provided,^ that when any cor- poration is to be formed for the purpose of originating and keeping a herd-register for the entry therein of any kind of thoroughbred horses, cattle, swine, sheep or other domestic animals, the total amount of the said capital stock of such 1 As amended by act of April 12, ^ gge post, § 387. 1876; March 3, 1880; and February 3 Sup. of March 18, 1884, P. L., p. 29, 1880. 82 €82 AMENDED CEETIEICATE — FILING. herd-register company, may be any sum not less than two hundred dollars, and the amount with which they shall com- mence business shall not be less than one hundred dollars ; IV. The names and residences of the stockholders, and the number of shares held by each ; V. The periods at which such company shall commence and terminate, not exceeding fifty years ; which certificate shall be proved or acknowledged, and recorded as required of deeds of real estate, in a book to be kept for that purpose in the office of the clerk of the county where the principal office or place of business of such company in this state shall be established, and, after being so recorded, shall be filed in the office of the secretary of state ; the certificate may con- tain any limitation upon the powers of the corporation, the ■directors and the stockholders, that the parties signing the same desire ; provided, such limitation does not attempt to exempt the corporation, the directors or the stockholders from the performance of any duty imposed by law. Sec 386. Same— Amended Certificate— Filing. — By the act of March 31, 1875,^ it is provided that whenever the original certificate of incorporation filed by any association under any general act for the formation of incorporated com- panies, is or shall be defective by reason of the omission of any matter required by law to be therein stated, or by reason of defective proof of acknowledgment, or by reason of the same not having been filed in all the offices required by law, the corporators or directors of such association are hereby authorized to make and file an amended certificate in conformity with the law under which such corporation was or shall have been organized, and upon such filing and upon due recording of such amended certificate, if required by law, said associ^ion shall be deemed and taken to be and to have been a corporation, from the time of filing such original cer- tificate. It is also provided that nothing therein shall affect any suit or proceeding at the time of filing such amended ■certificate pending against such corporation or impair any 1 P. L. 1875, p. 45, N. J. Revis. 1877, p. 197. BEGINNING OP COKPORATE EXISTENCE. 683 rights of action accrued against the stockholders, corporators or du-ectors. Sec. 387. Same— Certificate and Certified Copy— Evi- dence. — The said certificate, or a copy thereof, duly certified by said clerk or secretary, shall be evidence in all courts and places. Sec. 388. Corporate Existence— Begins wlien Certificate is Filed. — Upon making said certificate, and causing the same to be recorded and filed as aforesaid, the said persons so associating, their successors and assigns, shall be, from the time of commencement fixed in said certificate, and until the time limited therein for the termination thereof, incorporated into a company, by the name mentioned in said certificate ; provided, that the legislature may at pleasure dissolve any company created by virtue of this act. Sec. 389. All Companies Governed by this Act.— All companies that may be hereafter established within this state, under the provisions hereinabove contained, or under any law of this state, and also the officers of every such company, and the stockholders therein, may exercise the powers, and shall be governed by the provisions, and be subject to the liabilities hereinbefore and hereinafter provided. Sec. 390. Carrying on Business out of State— Holding Beal estate out of State. — Any company organized as afore- said may carry on a part of its business out of this state, and have one or more offices and places of businesss out of this state, and may hold, purchase and convey real and personal property out of this state, the same as if such real and per- sonal property were situated in the State of New Jersey; provided, that the certificate of the organization of such com- pany shall state what portion of its business is to be carried on out of this state, and in what town or city, county and state, its principal office or place of business out of this state is to be situated, and also in what other state or states, terri- tory or territories of the United States, and in what other countries it proposes to carry on operations, and shall also state the name of the town or city, and county, in which the 684 DIEECTOES TO BE SHAEEHOLDEES. principal part of the business of said company within the state is to be transacted, and such town or city and county within this state shall be deemed to be the town, place and county in which the operations and business of the company are to be carried on, and its principal place of business within this state within the provisions of this act.^ Sec. 391. Directors shall be Shareholders— Officers —Secretary and Treasurer.— The business of every such company shall be managed and conducted by the direc- tors thereof, who shall respectively be shareholders therein, and such other officers, agents and factors as the company shall think proper to authorize for that purpose ; and every such company shall have a secretary and treasurer. Sec. 392. Directors— When to he Chosen— Selection of President. — The directors shall not be less than three in number, and, except as hereinafter provided, they shall be chosen annually by the stockholders at such time and place as shall be provided by the by-laws of the company and shall hold their offices for one year and until others are chosen and qualified in their stead ; and one of the directors shall be chosen president, either by the directors or by the stockholders, as shall be directed by the by-laws ; but by so providing in its original certiticate of incorporation, any com- pany, organized under the act to which this is a supplement, may classify its directors in respect to the time for which they shall severally hold office, the several classes to be elected for different terms ; provided, that no class shall be elected for a shorter period than one year or for a longer period than five years, and that the term of office of at least one class shall expire in each year, and such directors shall hold office accordingly ; any such company, whose directors shall be so classified and which shall have more than one kind of stock, may, by so providing in its original certificate of incor- poration, or in its by-laws, confer the right to choose the directors of any class upon the stockholders of any class or classes, to the exclusion of the others.^ 1 As amended by supplement May 9, 1889; P. L. c. 265. 2 As amended by supplement May 9, 1889, P. L. c. S65. OFFICERS OF COEPOKATION. 685 Sec. 393. Secretary and Treasurer— When Chosen- Secretary to be Sworn— Treasurer to give Bond. — The secretary and treasurer shall also be chosen annually, either by the directors or the stockholders, as the by-laws may direct, and shall hold their offices until others are chosen and qualified in their stead ; the secretary shall be sworn to the faithful discharge of his duty, and shall record all the votes of the company and directors in a book to be kept for that purpose, and perform such other duties as shall be assigned to him ; and the treasurer shall give bond in such sum, and with such sureties, as shall be required by the by-laws, for the faithful discharge of his duty. Sec. 394. Same— Other officers. — Other officers, agents and factors of the company shall be chosen in such manner, and hold their offices for such terms, as shall be directed by the by-laws. Sec. 395. Tacancies— How Filled.— When any vacancy occurs among the directors or secretary or treasurer, by death, resignation, removal or otherwise, it shall be filled for the remainder of the year in such manner as may be provided for by the by-laws of the said company. Sec. 396.— Vote by Proxy— Meetings— Quorum.— At all meetings of the company absent stockholders may vote by proxy, authorized in writing ; and every company may deter- mine, by its by-laws, the manner of calling and conducting all meetings, what number of shares shall entitle the stock- holders to one or more votes, what number of stockholders sliall attend, either in person or by proxy, or what number of shares or amount of interest shall be represented at any meeting, in order to constitute a quorum ; and if the quorum shall not be so determined by the company, a majority of the stockholders in interest, represented either in person or by proxy, shall constitute a quorum. Sec. 397. Meetings — How Called. — The first meeting of every such company shall be called by a notice, signed by a majority of the persons named in the before-mentioned certi- ficate, and designating the time, place and purposes of the 686 INCREASE OP STOCK. meeting, and such notice shall, two weeks at least before the time of such meeting, be published in some newspaper of the county where the corporation may be established, or, if there be no newspaper in the county, then in a newspaper of an adjoining county, or said first meeting may be called without such notice or publication if two days' notice be personally served on all the parties named in the certificate, or if all the parties named in the certificate waive such notice and fix a time of meeting, then no notice or publication whatever shall be required of such first meeting. Sec. 398. Certificate of Stock. — Every stockholder shall have a certificate, signed by the treasurer, certifying the number of shares owned by said stockholder in such com- pany. Sec. 399. Increase of Stock.— Method of. — Every such company may, at any meeting called for that purpose, in- crease its capital stock and the number of shares therein until it shall reach the amount named in the original certificate,, and in ease more capital is necessary an additional certificate- shall be filed, under the hands and seals of two-thirds in interest of the stockholders, or their legal representatives,, stating the amount of such additional capital required, which shall be proved or acknowledged and recorded in the manner heretofore provided for in this act; provided, that for all stock issued under such supplemental certificates such com- pany, its directors and stockholders, shall be entitled to all the benefits and subject to all the liabilities contained in this act. Sec. 400. Common and Preferred Stock. — Any such com- pany shall have power to create and issue certificates of two kinds of stock, namely, general stock and preferred stock ; which preferfbd stock shall at no time exceed two-thirds of the actual capital paid in, and may be made subject to redemption, at par, at a fixed time, to be expressed in the cer. tificates thereof; and the holders of such preferred stock shall be entitled to receive, and the said company shall be bound to pay thereon, a fixed yearly dividend, to be expressed TRAUSFEE AND mfPOTHECATION OF STOCK. 68T in the said certificate, not exceeding eight per centum, pay- able quarterly, half-yearly or yearly, before any dividend shall be set apart or paid on the said general stock ; and in no event shall the holder of such preferred stock be individ- ually or personally liable for the debts or other liabilities of said company ; but in case of insolvency such debts or other liabilities shall be paid in preference to such preferred stock ; provided always, that except where it shall be otherwise pro- vided in its original certificate of incorporation, no such com- pany shall create or issue certificates for such preferred stock, except by authority given to the board of directors thereof, by a vote of at least two-thirds of the stock voted at a meet- ing of the general stockholders duly called for that purpose.^ Sec. 401. Transfer of Shares— Hypothecation— Con- tents of Certificate— What Transfer must Express.— The shares of stock in every corporation of this state shall be deemed personal property, and shall be transferable on the books of such company in such manner as the by-laws may provide ; and whenever any transfer of shares shall be made for collateral security, and not absolutely, the same shall be so expressed in the entry of said transfer. Sec. 402. Assessment of Stock. — The directors of every such company may, from time to time, assess upon each share of general stock such sums of money as two-thirds of the stockholders in interest shall direct, not exceeding, in the whole, the amount at which each share shall be originally limited under the third article of the eleventh section of this act ; and such sums so assessed shall be paid to the treasurer at such times and by such installments as the directors shall direct, said directors having given thirty days' notice of the time and place of such payment in a newspaper circulating in the county where sueh corporation is established. Sec. 403. Same— Non-payment of— Penalty.— If the owner or owners of any such share or shares shall neglect to pay any sum or sums duly assessed thereon for the space of thirty days after the time appointed for the payment thereof, 1 As amended by supplement of May 9, 1889; P. L. c. 265. 688 PROCEEDINGS FOE SALE OP SHAKES OP STOCK. the treasurer of the company may sell, at public auction, such number of the shares of such delinquent owner or owners as will pay all assessments then due from him or them, with interest, and all necessary incidental charges ; provided, two- thirds of the stockholders in interest shall so direct. Sec. 404. Same— Proceeding for Sale of Shares.— The treasurer shall give notice of the time and place appointed for such sale, and of the sum due on each share, by advertising the same three weeks successively, before the sale, in some newspaper circulating in the county where such company is established, and by mailing a notice to such delinquent stock- holder, if he has his post-oi3fiee address, and shall transfer such shares to the purchaser, who shall be entitled to a certificate therefor. Sec. 405. Payment of Capital Stock — Filing Certificate of. — The president and directors, with tlie secretary and treasurer of such company, after the payment of the last instalment of the capital stock so fixed and limited by the company, shall make a certificate, stating the amount of the capital so fixed and paid in in cash ; which certificate shall be signed and sworn or affirmed to by the president, secretary and treasurer, and a majority of the directors ; and they shall, within thirty days after making the same, cause the same to be recorded in a book to be kept for that purpose in the office of the clerk of the county wherein the business is conducted, or where their principal place of business or office is located. Sec. 406. Increase of Stock— Certificate of— To be Filed. — If any of the said companies shall increase their capital stock, as before provided in this act, the officers mentioned in the preceding section, after the payment of the last instal- ment of such additional stock, shall make a certificate of the amount so added and paid in cash, and sign and swear or affirm to the same, and cause it to be recorded in the manner provided in the preceding section. Sec. 407, Failure or Refusal to make Certificates- Penalty. — If any of said officers shall neglect or refuse to per- form the duties required of them in the two preceding sections REDUCTIOK OP STOCK — CHANGING BUSINESS. 689 for thirty days after written request so to do by a creditor or stockholder of said company, they shall be jointly and sever- ally liable for all debts of the company contracted before such certificate shall be recorded as aforesaid. Sec. 408. Reduction of Stock— Change of Nature of Business. — Every such company, except where otherwise provided in the certificate of incorporation, may, by a vote of two-thirds in interest of the stockholders or their legal repre- sentatives, and in all cases by unanimous consent of the stockholders at any meeting called for that purpose, reduce its capital stock or change the nature of its business ; and in such case the certificate of the proceedings, signed and acknowledged as aforesaid, shall, within thirty days after the passing thereof, be recorded in the said book in the clerk's office for the county wherein the business is conducted, or where their principal place of business or office is located, and published for three weeks in a newspaper circulating in said county ; and in default thereof the directors of the company shall be jointly and severally liable for all debts of the com- pany, contracted after said thirty days, and before the publica- tion and recording of the copy of the vote as aforesaid ; and the stockholders shall also be liable for any such sums as they may respectively receive of the amount so withdrawn. Sec. 409. Dissolution of Corporation— Proceedings for. • — Whenever, in the judgment of the board of directors of any corporation organized under this act, or incorporated under any law of this state, it shall be deemed advisable and most for the benefit of such corporation that the same should be dissolved before the expiration of the time limited in its certificate of incorporation or in its charter, it shall and may be lawful for such board of directors, within ten days after the adoption of a resolution to that effect by a majority of the whole board at any meeting called for that purpose, and of which meeting every director shall have received at least three days' notice, to cause written or printed notice of the adoption of such resolution to be mailed to each and every stock- holder of such company residing in the United States, and also within said ten days cause a like notice to be published in one or more newspapers published and circulating in the 44 690 BIGHT TO ALTER ACT. county wherein such corporation shall have their principal office, and be conducting their business, at least four weeks successively, once a week, next preceding the time appointed for the same, of a meeting of such stockholders to be held at the office of such company in such county, to take action upon such resolution so adopted by the board of directors, and which meeting shall be held between the hours of ten o'clock in the forenoon and three o'clock in the afternoon of the day so named, and which meeting may, on the day so appointed, by consent of a majority in interest of the stockholders present, be ad- journed from time to time for not less than eight days at any one time, of which adjourned meeting notice by advertise- ment in such paper shall be given ; and if at any such meet- ing two-thirds in interest of all the stockholders shall consent that such dissolution shall take place, and signify such their consent in writing, then, and in such case, such company shall, upon filing such consent, duly attested by their secre- tary in the office of the secretary of state, and receiving from him a certificate that such consent has been filed, be dissolved; and the board of directors of such company shall cause such certificate to be published four weeks successively, at least once in each week, in one or more of the newspaper published and circulating in the county in which such company has been located and conducting its business ; and at the expira- tion of such time the said board shall proceed to settle up and adjust the business and affairs of such company in the same manner as though the same had been dissolved by the expira- tion of the time mentioned in their charter or certificate of incorporation ; provided, that the secretary of state shall not issue the certificate of dissolution hereinbefore mentioned until satisfied by due proof that the requirements aforesaid have been •fully complied with by such corporation. Sec. 410. Alteration of Act— Reservation by Legislature. — The provisions contained in this act may be amended or repealed, at the pleasure of the legislature, and every com- pany created by this act shall be bound by such amendment ; but such amendment or repeal shall not take away or impair any remedy against any such corporation or its officers for any liability which shall have been previously incurred. CHAPTER XXIV. NEW JEESEY CORPORATIONS— ELECTION OF OFFICERS. TEAUSFBE OF STOCK ON BOOKS — TIME OF MAKING — ELECTION OP DIEECTOES — VOTING BY PROXY — ^EXECTJTOKS,TEUSTEBS, ETC., MAY VOTE — NON-EBSIDBNT STOCKHOLDEES MAY VOTE JUDGES OP ELECTION — COMPANY CANNOT VOTE — INVES- TIGATION OP ELECTIONS — BY-LAWS EEGTJLATING ELECTIONS PAILUEE TO HOLD ELECTION — SECEETAEY MAY CALL MEETING WHEN — WHO MAY BE DIEECTOES — CEASES TO BE DIEBCTOE WHEN — PILING LIST OP OPPICEES. Sec. 411. Transfer and stock books — Open to inspection — List of stock- holders — Time of making. Sec. 412. Elections for Directors — How had — Opening and Closing of Polls. Sec. 413. Same — Votings — Proxies — Where stock cannot be voted. Sec. 414. Same — Executors, trustees, etc., holding stock — may vote. Sec. 415. Same — Non-resident stockholders may vote. Sec. 416. Same — Alphabetical list of stockholders. Sec. 417. Same — Judges of election — Candidate for office of director can- not be. Sec. 418. Same — Company holding its own stock cannot vote on it. Sec. 419. Same — Complaints touching — Supreme court wiU summarily investigate. Sec. 420. By-laws regulating election — ^When to be made — Transfer books determine who may vote. Sec. 421. Failure to hold election — ^Notictf of new election. Sec. 422. Same — Secretary to call meeting on application of stockholders, Sec. 423. Director — Must be a stockholder. Sec. 424. Same — Ceasing to be stockholder, ceases to be director. Sec, 425. List of officers and directors— Filing with secretary of state. 692 BOOKS OF COMPANY — INSPECTION. Sec. 411. Transfer and Stock Books— Open to Inspec- tion — List of Stockliolders — Time of Making. — The book of books of any incorporated company in this state in which the transfer of stock in any such company shall be registered, and the books containing the names of fhe stockholders in any «uch company, shall at all times during the usual hours of transacting business, be open to the examination of every stock- holder of such company for thirty day previous to any elec- tion of directors ; and that it shall be the duty of the secre- tary, clerk, treasurer or other officer of each and every incor- porated stock company who shall have charge of the transfer books of said company to prepare and make out, at least ten days before every election of said company, a full, true and complete list of all the stockholders of said company entitled to vote at the ensuing election, with the number of shares held by each, which list shall be made and arranged in ■alphabetical order, and shall at all times during the usual hours for business be open to the examination of any stock- holder of such company ; and if any officer having charge of such books or list shall, upon demand by any stockholder, as aforesaid, refuse or neglect to exhibit such books or list ■or submit them to examination, as aforesaid, he shall for every ■such offence forfeit the sum of two hundred dollars, the one- 'half thereof to the use of the State of New Jersey, and the ■other moiety to him who will sue for the same, to be re- covered by action of debt in any court of record, together ■with costs of suit ; and, further, that the book or books afore- said shall be the only evidence who are the stockholders entitled to examine such book or books, or list, and to vote in person or by proxy at any election for directors of said com- pany, and the persons receiving the greatest number of votes shall be directors or managers. Sec. 412. Elections for Directors— How had— Opening and Closing of Polls.— All elections for managers or directors of every incorporated company in this state shall be held by bal- lot (unless otherwise expressly provided in their respective charters), and that the poll at every such election shall be opened between the hours of nine o'clock in the morning and ELECTIONS — VOTING BY PEOXY. 69S five o'clock in the afternoon, and sliall continue open at least one hour by daylight, and shall close before nine o'clock in the. evening. Sec. 413. Same— Votings — Proxies — When Stock cannot be Toted. — Unless otherwise provided in their respective char- ters, certificates or by-laws, at every such election each stock- holder shall be entitled to one vote for each share of the capi- tal stock of said company held by him or her, which vote may be given in person or by proxy ; but no proxy shall be voted on, allowed or received, for more than three years from its date ; nor shall any share or shares of stock be voted on at any election which have been transferred ou the books of the company within twenty days next preceding such election, j Sec. 414. Same— Executors, Trustees, etc., holding Stock, may Vote. — Everying person holding stock in any com- pany as executor, administrator, guardian or trustee, shall re- present the share or stock in his hands at all meetings of the company, and may vote accordingly as a stockholder ; and every person who shall pledge his stock as collateral security may, nevertheless, represent the same at all such meetings, and may vote accordingly as a stockholder. • Sec, 415. Same — Non-resident Stockholders may Vote. — So much and such parts of the several acts of incor- poration in this state, or any law thereof as prohibits stock- holders residing out of the state from voting on stock held by them, are hereby repealed. Sec. 416. Same— Alphabetical List of Stockholders. — The board of directors or managers of each and every incor- porated company in this state' issuing stock shall be required to produce at the time and place of election of such incor- porated company during the whole time such election shall be open, a full, true and complete list of all the stockholders of said company entitled to vote at such election, with the number of shares held by each ; which list shall be arranged in alphabetical order, and subject to the inspection of any stockholder who may be present at such election ; and upon tho neglect or refusal of said directors or managers to produce 694 JUDGES OF ELECTION. said list at any election of said company, they shall be inelig- ible to any oflBce at such election. Sec. 417. Same— Judges of Election— Candidate for Office of Director cannot be. — No person who is a candidate for the office of director in any incorporated company of this state who shall act as judge, inspector or clerk, or in any other character, as the conductor of any election for direc- tors of such company ; and in case any person so acting or conducting at any election shall be elected a director, his elec- tion shall be void, and it shall not be lawful for the directors for the time being to appoint such person to the office of director of such company within twelve months next succeed- ing such election ; provided, that this section shall not apply to the first election of directors, in any corporation. Sec. 418. Same — Company holding its own Stock Can- not Tote on it. — If anj'' incorporated company in this state- shall purchase any of the stock of such company, or take the same in payment or satisfaction of any debt due to them, such company shall not vote, in virtue of their stock so purchased or taken, either directly or indirectly, at any election for directors of said company. Sec. 419. Same— Complaints touching— Supreme Court will summarily Investigate.— It shall be the duty of the supreme court, upon the application of any person or persons, or a body corporate, who may be aggrieved by, or may complain of, any election or any proceeding, act or matter, in or touching the same, reasonable notice having been given to the adverse party, or to those who are to be affected thereby, of such intended application, to proceed forthwith, and in a summary" vray, to hear the affidavits, proofs and allegations of the parties, or otherwise inquire into the matter or causes of complaint, and thereupon estab- lish the elecSon so complained of, or to order a new election, or make such order and give such relief in the premises as right and justice may appear to said supreme court to require ; provided, that the said supreme court may, if the case shall appear to require it, either order an issue or issues to be made up in such manner and form as the supreme court may direct, FAILURE TO HOLD ELECTION. 695 in order to try the respective rights of the parties who may claim the same to the office or offices, or franchise in ques- tion, or may give leave to exhibit, or direct the attorney- general to exhibit, one or more information or informations in the nature of a quo warranto in the premises. Sec. 420. By-laws regulating Election— When to be Made— Transfer Books Determine who may Vote.— No by-law of the directors and managers of any incorporated company regulating the election of directors or officers of such company shall be valid unless the same shall have been made thirty days previous to any election of such company, and subject to the inspection of any stockholder ; and in all cases where the right of voting upon any share or shares of stock of any incorporated company of this state shall be questioned, it shall be the duty of the inspectors of the election to require the transfer book of said company as evidence of stock held in the said company, and all such shares as may appear standing thereon in the name of any person or persons, shall and may be voted on by such person or persons directly by themselves or by proxy, subject to the provisions of the act of incorpora- tion. Sec. 421. Failure to hold Election— Notice of new Elec- tion. — If, at any time hereafter, the election for directors of any bank or other incorporated company of this state shall not be duly held on the day designated or appointed by the act incorporating such bank or other incorporated company, or by the by-laws of any such corporation, it shall be the duty of the president and directoi'S of such bank or other incorporated company to notify and cause an election for directors to be held thereafter as soon as conveniently may be ; and in all cases no share or shares shall be voted upon except by such person or persons who may have appeared on the transfer books of said company to have had the right to vote thereon on the day when, by the act of incorporation of such com- j)any, or by said by-laws, the election ought to have been held ; which said right so to vote shall be exercised by the person so appearing, as aforesaid, upon the transfer books of such company on any day when such election may be held ; 696 WHEN SECRET AKY TO CALL MEETING. no failure to elect directors at the time required by law shall work any forfeiture or dissolution of the corporaUon, but any justice of the supreme court may summarily order such elec- tion to be held upon the application of any stockholder, and punish the directors as for a contempt of court for any neglect or failure to obey the order' of such justice in refer- ence to such election. Sec. 422. Same— Secretary to call Meeting on Applica- tion of Stockholders. — By an act approved March 17, 1874,i it is provided that if, at any time hereafter the election of directors of any incorporated company of this state, shall not be duly held on the day designated by the act incorporating such company, or on the day designated by the by-laws of such company, it shall be the duty of the secretary of such corporation, on the written request of five stockholders, and in mutual insurance on like request of five policy holders to call a meeting of the stockholders or policy holders of such company for the purpose of electing directors ; said call to be made in the same manner as are required by the charter or by-laws of such company for the regular election of directors thereof.^ Sec. 423. Directors must be Stockholders.— It shall not be lawful for any person to be elected a director of any body corporate in this state, issuing stock, unless such person shall be at the time of his election a bona fide holder of some of the stock of said body corporate. Sec. 424. Same— Ceasing to he Stockholder Ceases to he Director.— When any person, a director of any body cor- porate, shall cease to be a bona fide holder of some of the stock thereof, he shall cease thereupon to be a director thereof. Sec. 42*. List of officers and directors— filing with Secretary of State.— It shall be the duty of all corporations which may now or hereafter be authorized to transact busi- 1 P. L. 1874, p. 37; N. J. Eevis. that it shall not apply to corporated 1877, p. 196. literary and religious societies. Section two of this act provides FILING LIST OF OPPICEES AND DIEECTOES. 697 ness in this state, whether organized under general or special: laws, although such corporation may not be organized under the laws of this state, and they are hereby required to file, oil or before the thirtieth day of June next, and annually there- after within thirty days after the usual election of directors, managers or trustees and the officers thereof, whether such election shall have been held on the day fixed by law or not,, in the department of state of tliis state, a complete list, duly authenticated by the signature of the president and secretary,, of the names of such directors, managers, trustees and officers,, with the date of the election or appointment, term of office and residence of each ; and also to designate the business and the location of the principal office or place of business of the company in this state, as also in the state where organized ; and for this purpose it shall be the duty of the secretary of state to furnish blanks in proper form, and to safely keep in his office all lists so filed, and issue to the company so filing his certificate thereof, and also to prepare an alphabetical index thereto, which lists and index shall be submitted to the inspection of persons interested at all proper hours ; and it shall further be his duty, during the month of April next, to cause a notice of the requirements of this act to be published three times in each of the newspapers in this state authorized to publish the laws ; and every such corporation which shall not, within ten days of the time herein fixed, comply with the provisions of this act, shall forfeit the sum of two hun- dred dollars, the one-half thereof to the use of the State of New Jersey, and the other moiety to him who shall sue for the same, to be recovered by action of debt in any court of record, together with costs of suit.^ 1 As amended by supplement of March 8, 1877; P. L., p. 103. CHAPTER XXV. NEW JERSEY CORPORATIONS -MANAGEMENT AND LIABILITIES OF DIRECTORS. STOCKHOLDEES' MEETING — WHERE HELD — OFFICERS NEGLECT OR REFUSAL TO CALL — CALL BY STOCKHOLDEES — DIVI- DENDS — WITHDRAWAL OF CAPITAL — LIABILITY OF DIEECT- OES AND STOCKHOLDERS — ^PAYMENT OF CAPITAL TO BE IN MONET — LOANS TO STOCKHOLDER — ISSUE OF STOCK FOR PROPERTY — FALSE CEETIFICATE — LIABILITY OF OFFICERS FOR DEBTS. ;Sec. 426. Stockholders' meeting — To be held at principal office in state- Exception. Sec. 427. Same — Officers neglecting or refusing to call — Stockholders may- call. Sec. 428. Dividends — Manufacturing corporations to declare annually. :Sbc. 429. Withdrawal of capital — Directors and stockholders liable. Sec. 430. Capital— Payment of to be in money — No loans to stockholders. Sec. 431. Stock— Issue of for property purchased. Sec. 432. False certificate— Liability of officers for debts. Sec. 426. Stockholders' Meeting— Exception to be Held at Principal Office in State.— In all cases where it is not otherwise provided by law the meeting of the stockholders of all corporations of this state shall be held at the principal office or place of business of the company in this state ; the directors may hold their meetings, and have an office and keep the books of tWb company (except the stock and transfer books) outside of this state, if the by-laws of the company so provide ; provided, however, that said company shall always maintain a principal office or place of business in this state, and have an agent of the company in charge thereof, wherein shall be kept the stock and transfer books of the company for the STOCKHOLDERS MAY CALL, MEETING. 699 inspection of all who are authorized to see the same, and for the transfer of the stock ; and, provided further, that the chancellor of the supreme court, or any justice thereof may, upon proper causes shown, summarily order any or all of the hooks of said companyto he forthwith brought within this state and kept therein at such place as may be designated, for such time as such chancellor, court or judge may deem proper, and upon failure of any company to comply with such order its ■charter may be declared forfeited by the chancellor of said court, and it shall therefrom cease to be a corporation, and all the directors and officers of said company shall be liable to be punished as for contempt of court for disobedience to such order. Sec. 427. Same— Officers Neglecting or Ref asing to Call, Stockholders may Call. — Whenever, for want of sufficient hy-laws for the purpose, or of officers duly authorized, or from the improper neglect or refusal of such officers, or from other legal impediment, a legal meeting of any kind of the stock- holders of any corporation cannot be otherwise called, three or more stockholders thereof may call a meeting of the com- pany by giving ten days' notice in a newspaper circulating in the county wherein the basiness is conducted, or where their principal place of business or office in this state is located ; and such meeting of the company ; and if there be no officers of the company present, whose duty it is to preside at meet- ings, the stockholders present may elect officers for the meeting ; and it shall be the duty of the secretary of the company to record the proceedings of such meeting in the book of minutes of the company. Sec. 438.— Dividends— Manufacturing Coi'porations to Declare Annually. — All manufacturing corporations within this state shall, on the first day of August in each and every year, unless some other specific day for that purpose be fixed in their charter or by-laws, and in that case then on the day so fixed, after reserving over and above their capital stock paid in, as a working capital for said corporation, a sum to be specified by their board of directors, and not exceeding the amount of one-half of the capital stock paid or secured to be 700 WITHDRAWAL OF CAPITAL — LIABILITY. paid, declared a dividend of the whole of their accumulated profits exceeding the amount so reserved as a working capital, and pass the share or dividend of each stockholder of such profits to the credit of their respective stockholders, and pay the same to such stockholders on demand. Sec. 429. Withdrawal of Capital— Directors and Stock- holders liable. — If any part of the capital stock of such com- pany shall be withdrawn and refunded to the stockholders- before the payment of all the debts of the company contracted previously to the recording and publishing of a copy of a vote for that purpose, as prescribed in the thirty-third section; hereof, the president and directors of the company shall be jointly and severally liable for the payment of the said last- mentioned debts J and the stockholders shall also be liable for any such sums of money as they may respectively receive of the amount so withdrawn. Sec. 430. Capital Payment of to be in Money— No Loans to Stockholders.— Nothing but money shall be consid- ered as payment of any part of the capital stock of any company organized under this act, except as hereinafter pro- vided for the purchase of property ; and no loan of money shall be made to a stockholder or officer therein ; and if any such loan shall be made to a stockholder or officer of the com- pany, the officers who shall make it, or who shall assent there- to, shall be jointly and severally liable, to the extent of such loan and interest, for all the debts of the company cojitracted before the repayment of the sums so loaned. Sec. 431. Stock— Issue for or Property Purchased — The directors of any company incorporated under this act may purchase mines, manufactories or other property necessary for their business, or the stock of any company or companies owning mjping, manufacturing or producing materials, or other property necessary for their business, and issue stock to the amount of the value thereof in payment therefor, and the stock so issued shall be declared and be taken to be fuj,! paid stock and not liable to any further call, neither shall the holder tjhereof be liable for any further payments under any of the. FALSE CERTIFICATES — LIABILITY. 701 provisions of this act; and said stock shall have legibly- stamped upon the face thereof, "issued for property purchased," and in all statements and reports of the company to be pub- lished, this stock shall not be stated or reported as being issued for cash paid into the company, but shall be reported ill this respect according to the fact.^ Sec, 432. False Certificate— Liability of Officers for Debts. — If any certificate made, or any public notice given by the officers, of any company, in pursuance of the provisions of this act, shall be false in any material representation, all the officers who shall have signed the same shall be jointly and severally liable for all the debts of the company contracted while they were stockholders or officers thereof. 1 As amended by supplementary act of May 9, 1889; P. L., c. 265. CHAPTER XXVI. NEW JERSEY CORPORATIONS— REMEDIES. DIRECTORS AND TRUSTEES ON DISSOLTTTION — POWERS AND LIABILITIES OE TRUSTEES — CONTINUANCE OP CORPORA- TION FOR SETTING UP — DIRECTORS, CONTINUED AS TRUS- TEES ON DISSOLUTION — RECEIVER APPOINTED, WHEN — JURISDICTION OP CHANCELLOR — DUTY OP RECEIVERS — LIEN OF WORKMEN — VESTING OP PROPERTY IN STOCK- HOLDERS — SUITS NOT ABATED ON DISSOLUTION — EXECU- TION AGAINST CORPORATION — SCHEDULE OP PROPERTY — DEBTS DUE CO. — PROCEEDINGS IN INSOLVENCY OP CO. BILL IN CHANCERY — EVIDENCE OP INSOLVENCY — POWERS OP RECEIVER — QUALIFICATIONS AND OATH — EXAMINA- TION OF WITNESSES — ^BREAKING DOORS AND MAKING SEARCH — COMPOUNDING DEBTS AND ALLOWING SET-OFFS — DISPUTED CLAIM — REMOVAL OP RECEIVER — DISTRIBU- TION OF ASSETS — SUBSTITUTION OP RECEIVER — APPEAL FROM receiver's DETERMINATION — EFFECT OP APPOINT- MENT OP RECEIVER — SALE OF MORTGAGED PROPERTY — SALE OF FRANCHISE — PROCESS AGAINST CORPORATION — SERVICE ON FOREIGN CORPORATIONS — SERVICE BY PUBLI- CATION — ^LIBN ON LANDS — HOW LIABILITY OF OFFICERS AND DIRECTORS ENFORCED — BILL IN CHANCERY — PAY- MENT OP C3EBTS BY, RECOVERY — WHEN PROPERTY OP STOCKHOLDER AND DIRECTOR TO BE SOLD. Sec. 433. Against the corporation — Directors to be trustees on dissolution. Sec. 434. Same — Powers and liabilities of trustees. Sec. 435. Same — Contintiance of corporate existence for settling up business. Sec. 436. Same— Dissolution— Directors may be continued as trustees — Ke- ceiver may be appointed when. REMEDIES AGAINST CORPORATIONS. 70S Sec. 437. Same — Chancellor has full jurisdiction. Sec. 438. Same — Duties of receivers. Sec. 439. Same — Lien of workmen in case of insolvency. Sec. 440. Same — On dissolution property vests in stockholders. Sec. 441. Same- — Dissolution— Suits do not abate on. Sec. 442. Same— Execution against corporation— Schedule of property to b& shown sheriff. Sec. 443. Same — Execution — Satisfaction out of — Debts due the company. Sec. 444. Same — Failure or refusal to comply with above sections — Penalty. Sec. 445. Same — Insolvency of company — Directors to call a meeting of stockholders. Sec. 446. Same — Insolvency — Bill in chancery for injunction and receiver. Sec. 447. Same — Insolvency — Evidence of. Sec. 448. Same — Receivers — Court of chancery may appoint — Powers of. Sec. 449. Same — Receivers — Qualifications of — Form of oath. Sec. 450. Same — Receiver — Examination of — ^Witnesses respecting effects of the company. Sec. 451. Same — Receiver may break doors and make search. Sec. 452. Same — Receiver to file inventory and accouijts. Sec. 453. Same — Receiver — Power to sue, compound debts, allow set-offs, etc. Sec. 454. Same — Suit by receiver — ^Disputed claim — Trial by jury. Sec. 455. Same — Majority of receivers may act — Removal of receivers. Sec. 456. Same — Distribution of assets of insolvent corporation. Sec. 457. Same — Receiver may be substituted in pending suit. Sec. 458. Same — Receiver's determination — Appeal to the chancellor from. Sec. 459. Same — Appointment of receiver — Corporation not to transact busi- ness after — Forfeiture of charter. Sec. 460. Same — Mortgaged property — Sale free of liens. Sec. 461. Same — Franchise of railroad, canal, etc., may be sold. Sec. 462. Same — Limitation of act. Sec. 463. Same — Process against a corporation — Method of service. Sec. 464. Same — Service of process on foreign corporations. Sec. 465. Same — ^When defendant in court. Sec. 466. Same — Service by publication when. Sec. 467. Same — Commencement of action — Lien on company's land. Sec. 468. Same — Dissolution of corporation does not abate suits. Sec. 469. Against directors and stockholders — Liabilities of ofBcers and di- rectors enforced by action on the case. Sec. 470. Same — Enforcement by bill in chancery. Sec. 471. Same — Payment of debt by officers and stockholders — Recover of company. Sec. 472. Same — Property of director or stockholder — When to be sold for company's debts. Sec. 433. Against the Corporation— Directors to be Trustees on Dissolution. — Upon the dissolution in any man- ner of any corporation already created or which may here- 704 POWERS AND LIABILITIES OF TRUSTEES. after be created by or under any law of this state, the presi- dent and directors, or the managers of the affairs of the said corporation at the time of its dissolution, by whatever name they may be know in la w,shall be 'trustees of such corporation, with full power to settle the affairs, collect the outstanding debts and divide the moneys and other property among the stockholders, after paying the debts due and owing by such corporation at the time of its dissolution, as far as such moneys and property shall enable them. Sec. 434. Same— Powers and Liabilities of Tmstees. — The persons constituted trustees, as aforesaid, shall have au- thority to sue for and recover the aforesaid debts and property by the name of the trustees of such corporation, describing it by its corporate name, and shall be suable by the same name, or in their own names or individual capacities, for the debts owing bj'^ such corporation at the time of its dissolution, and shall be jointly and severally responsible for such debts to the amount of the moneys and property of such corporation at the time of its dissolution, and which shall come to their hands or possession. Sec. 435. Same— Continuance of Corporate Existence for Settling up Business.— All such corporations, whether they expire by their own limitation, or shall be annulled by the legislature, or otherwise dissolved, shall nevertheless be con- tinued bodies corporate for the purpose of prosecuting and de- fending suits by or against them, and of enabling them grad- ually to settle and close their concerns, to dispose of and convey their property, and to divide their capital stock, but not for the purpose of continuing the business for which such corporation may be established. Sec. 436. Same— Dissolution— Directors may be Con- tinued as Tmstees— Receiver may be Appointed when.^ When any corporation shall be dissolved in any manner what- ever, the chancellor, on application of any creditor or stock- holder of such corporation at any time, may either con- tinue such directors trustees as aforesaid, or appoint one or more persons to be receivers of and for such corporation, to take chirge of the estate and effects thereof, and to collect JUBISDICTION OF CHANCBLLOE. 705 the debts and property due and belonging to the company with power to prosecute and defend, in the name of the cor- poration or otherwise, all such suits as may be necessary or proper for the purposes aforesaid, and to appoint an agent or agents under them, and to do all other acts which might be done by such corporation, if in being, that may be necessary for the final settlement of the unfinished business of the cor- poration ; and the powers of such trustees or receivers may be continued as long as the chancellor shall think necessary for the purposes aforesaid. Sec. 437. Same— Chancellor has full Jurisdiction.— The chancellor shall have jurisdiction of said application, and of all questions arising in the proceedings thereon, and may make such orders, injunctions and decrees therein as justice and equity shall require. Sec. 438. Same — Duties of Eeceiyers.^The said trustees or receivers shall pay all debts due from the corporation, if the funds in their hands shall be sufficient therefor, and if not they shall distribute the same ratably among all the creditors who shall prove their debts in the manner that shall be directed by an order or decree of the court for that purpose ; and if there shall be any balance remaining after the payment of such debts and necessary expenses, they shall distribute and pay the same to and among those who shall be justly entitled thereto, as having been stockholders of the corporation, or their legal representatives. Sec. 439. Same— Lien of Workmen in case of Insolvency. — In case of the insolvency of any corporation, the laborers then or theretofore in the employ thereof shall have a lien upon the assets thereof for the amount due to them respect- ively, which shall be paid prior to any other debt or debts of said company ; and the word " laborers " shall be construed to include all persons doing labor or service of whatever char- acter for or as workmen or employes, in the employ of such corporation ; and the lien shall have reference to and comprise all claims for such labor or services rendered for or in behalf of such corporations before the date which the court adjudges 45 706 DISSOLUTION — PROPERTY ON. to be the time when the insolvency occurred which gives it jurisdiction, whether such " laborers " were in the actual em- ploy of such corporation at that time or not.^ This act shall not only apply to all prpceedings in insol- vency hereafter begun, but as well to any now pending where the assets have not been distributed. Sec. 440. Same— On Dissolution Property Vests in Stock- holders.— On the final dissolution of any corporation created under this act, all its real and personal estate, not legally dis- posed of, shall be vested in the individuals who may be stock- holders at the time of such dissolution, in their respective proportions, and they shall hold the same as tenants or own- ers in common. Sec. 441. Same — Dissolution — Suits do not Abate on, — In any action now pending or to be commenced in any court of record of this state against any corporation now or here- after existing, or that may be created hereafter, if said corpo- ration become dissolved, by the expiration of its charter or otherwise, before final judgment obtained therein, the said action shall not abate by reason thereof ; but the dissolution of said corporation being suggested, and the names of the trus- tees of said corporation being entered upon the record, the said action shall proceed to final judgment against the said trus- tees by the name of the corporation.*^ Sec. 442. Execution against Corporations— Schedule of Property to be shown Sheriff.— Every agent or other person having charge of any property of a corporation, on re- quest of any public officer having for service a writ of execu- tion against it, shall furnish the names of the directors and secretary, or stockholders thereof, and a schedule of all its property, including debts due or to become due to such cor- poration, so lar as he may have knowledge of the same. Sec. 443. Same-Execution-Satisfaction out of Debts due the Company, — If any such officer holding an execution shall be unable to find other property belonging to such corporation 1 As amended by the supplement ^ See post, § 454. of March 31, 1887; P. L., p. 99. INSOLVENCY — ^MEETING OP STOCKHOLDERS. TOT liable to execution, he, or tlie judgment creditor, may elect to satisfy such execution, in whole or in part, by any debts due the same, not exceeding the amount thereof ; and it shall be the duty of any agent or other person having the custody of any evidence of such debt to deliver the same to the officer, for the use of the creditor ; and such delivery, with a transfer to the officer in writing, for the use of the creditor, and notice to the debtor, shall be a valid assignment thereof ; and such creditor may sue for and collect the same in the name of such corporation, subject to such equitable set-offs on the part of the debtor as may be in other assignments. Sec. 444. Same— Failure or Refusal to Comply with above Sections — Penalty. — Every such agent or other person ■who shall neglect or refuse to comply with the provisions of the two preceding sections, shall be himself liable to pay to the execution creditor the amount due on said execution, with costs. Sec. 445. Same— insolvency of Company— Directors to call a Meeting of Stockholders.— Whenever any incor- porated company in this state shall become insolvent, it shall be the duty of the directors or managers thereof, within ten days thereafter, to call a public meeting of the stockholders, and to lay before them for inspection and examination all the books of accounts, by-laws and minutes of the said corpora- tion, and to exhibit to the said meeting a full and true state- ment of all the estate, funds and property of the said company, and of all the debts due and owing to the said company, and by whom, and of all the debts owing by the said company, and to whom, as far as the said directors and managers can at that time make out the same, so as to exhibit to the stock- holders a full, fair and true account of the situation of the " affairs of the said company. Sec. 446. Same— Insolvency— Bill in Chancery for Injunction and Eeceiver. — Whenever any incorporated com- pany shall have become insolvent, or shall suspend its ordin- ary business for want of funds to carry on the same, it shall and may be lawful for any creditor or stockholder to apply, by petition or bill of complaint, to the chancellor, setting forth the facts and circumstances of the case, for a writ of 708 EVIDENCE OF INSOLVENCY. injunction, and the appointment of a receiver or receivers, or trustees ; whereupon the chancellor, being satisfied of the suf- ficiency of said application, and also of the truth of the facts and allegations contained in the said petition or bill, by af£- -davit or otherwise, and upon giving, when so ordered, such reasonable notice, to be served or published, as the chancellor in an order to be made for that purpose shall direct, the chancellor may proceed in a summary way to hear the affidavits, proofs and allegations which may be offered by or on behalf of the parties; and if upon such inquiries into the matters or cause of complaint it shall be made to appear to the chancellor that the said company has become insolvent, and shall not be about to resume its business in a short time thereafter with safety to the public and advantage to the stockholders, it shall and may be lawful for the chancellor to issue an injunction to re- strain the said company and its officers and agents from exer. cising any of the privileges or franchises granted by its certi- ficate, or by the act incorporating the said company, and for collecting or receiving any debts, or from paying out, selling- assigning or transferring any of the estate, moneys, funds, lands, tenements or effects of the said company, until the court shall otherwise order. Sec. 447. Same— Insolvency — Evidence of. — Whenever two or more of the directors or the cashier of any banking company shall admit that the said bank is insolvent or unable to pay its debts, and the said bank shall neglect or refuse to pay its debts, when demanded within the usual and proper hours of business, or whenever such banking company shall have stopped payment, by neglecting or refusing to redeem their bills, notes or other evidences of debt in specie or in the notes of some other incorporated bank, current at the time in this state at par value, for want of funds, or shall have closed its doors during banking hours, or taken any other measures with intent to prevent the creditors of the said bank from demanding payment of their just debts, or from presenting the notes or bills of the said bank for redemption as aforesaid, or shall have suspended the ordinary business of the said banking company, shall from the time thereof be deemed and RECEIVERS — APPOIKTMENT AND POWERS. 709 considered insolvent within the true intent and meaning of this act. Sec. 448. Same. — Receivers— Court of Chancery may Appoint — Powers of. — It shall and may be lawful for the court of chancery, if the circumstances of the case and the ends of justice require it, at the time of ordering the said in- injunction, or at any other time afterwards during the con- tinuance of the said injunction, to appoint a receiver or ve- ceivers, or trustee or trustees, with full power and authority to demand, sue for, collect, receive and take into their possession, all the goods andchattels',rightsand credits, moneys and effects, lands and tenements, books, papers, choses in action, bills, notes and property of every description belonging to the said company at the time of their insolvency or suspension of business as aforesaid, and to sell, convey or assign all the said real or personal estate, and to pay into the court of chancery all the moneys and securities for money arising from such sales, or which the said receiver receivers, or trustee or trustees, shall collect or receive by virtue of the authority vested in them, to be disposed of by the said receiver or receivers, or trustee or trustees, from time to time, under the order of said court, among the creditors of the said company, first making to the receiver or receivers, or trustee or trustees, such reasonable compensation as the chancellor may deem just and proper, and also deducting the costs of the proceed- ings in the said court. Sec. 449. Same— Keceivers— Qualifications of— Form of Oath. — Before the said receiver or receivers, or trustee or trus- tees, shall be capable of acting, he or they shall comply with such terms as the chancellor in his order appointing him or them may prescribe, and he or they shall respectively take and subscribe the following oath or afBrmation, before one of the masters of the court of chancery, or before the chanceller : " I, , do swear (or affirm) that I will faithfully, honestly and impartilly execute the powers and trusts reposed in me, as receiver or trustee (as the case may be), for the creditors and stockholders of the , and that without favor or affection," which oath or affirmation shall be filed in the office of the 710 EXAMINATION OF WITNESSES AS TO ASSETS. clerk in chancery, within ten days after the taking thereof. Sec. 450. Same— Receiver— Examination of Witnesses Respecting Effects of the Company. — It shall and may be lawful for the receiver or receivers, or trustee or trustees, in order to enable them to ascertain and secure the property and effects of the company for which he or the}'' shall be ap- pointed as aforesaid, to send for persons and papers, and to examine the said persons and the president, directors, mana- gers, cashier and all other ofScers and agents of the said com- pany, on oath or affirmation (which oath or affirmation the said receiver or receivers, or trustee or trustees, are hereby em- powered to administer), respecting the affairs and transactions of the said company, and the estate, money, goods, chattels, credits, notes, bills and choses in action, real and personal estate and effects of every kind of the said company; and if any such person shall refuse to be sworn or affirmed, and to make answer to such questions as shall be put to him, or shall refuse to declare the whole truth touching the subject-matter of the said examination, then it shall be lawful for the chan- cellor, on report made to him by the said receiver or receivers, or trustee or trustees, to commit such person to prison, there to remain until he shall submit himself to be examined as aforesaid, and shall pay all the costs of such proceedings against him. Sec. 451. Same,— Receiver may break Doors and make Search. — It shall be lawful for the said receiver or receivers, or trustee or trustees, with the assistance of a peace officer, to break open, in the daj^-time, the houses, shops, warehouses, doors, trunks, chests or other places of said company for which he or they shall be appointed receiver or receivers, or trustee or trustees, as aforesaid, where any of the said company's goods, chattels, choses in action, notes, bills, moneys, books, papers, or other writings or effects, have been usually kept or shall be, and to take possession of the same, and also to take posses- sion of the lands and tenements belong to said corporation. Sec. 452. Same— Receiver to lile Inventory and Ac- counts. — It shall be the duty of the receiver or receivers, or trustee or trustees, so to bo appointed as soon as they con- veniently can after taking possession of the estate and effects BECEIVER MAT SUE OB COMPOUND DEBT. 711 of the company for which he or they shall be appointed as aforesaid, to lay before the court of chancery a full and com- plete inventory of all the estate, property and effects of the said company, its nature and probable value, and an account of all the debts due from the said company and of the debts due to it, as near as the said receiver or receivers, or trustee or trustees, can ascertain the same at that time, and also to make a report of their proceedings to the said court every six months thereafter, until the said trust shall be completed. Sec. 453. Same— Receiver — Power to sue. Compound Debts, allow Set-offs, etc. — The receiver or receivers, or trus- tee or trustees, so to be appointed, shall be deemed and taken to be a receiver or receivers, or trustee or trustees, for the creditors and stockholders of the company for which they shall be appointed, with full power and authority, whenever they shall deem it proper, to institute suits at law or in equity in his or their own name or names as receiver or receivers, or trustee or trustees, as aforesaid, for the recovery of any estate real or personal, debts, rights in action, damages and demands whatsoever and wheresoever existing in favor of the said company, at the time of the insolvency or suspension of bus- iness as aforesaid of the said company or accruing subsequent thereto, and with power and authority, in their discretion, to compound and settle with any debtor of the said company, or with persons having possession of their property, or in any way responsible, in law or in equity, to the said company, at the time of its insolvency or suspension of business as afore- said, upon such terms and in such manner as the said receiver or receivers, or trustee or trustees, shall deem just and bene- ficial, under all the circumstances, to the persons, interested in the funds and property of the said corporation; and in case of mutual dealing between the said corporation and any other person or persons, to allow just set-offs in favor of such persons, in all cases in which it shall appear to the said re- ceiver or receivers, or trustee or trustees, that the same ought to be allowed, according to law and equity; provided, that Avhere a debtor shall have paid bona fide his debt to the said company, without notice that the said company had bet.ome 712 SUIT OK DISPTTTED CLAIM. insolvent, or had suspended its business as aforesaid, he, she or they shall not be liable to pay the same to the receiver or receivers, trustee or trustees. Sec. 454. Same— Suit by Receiver— Disputed Claim- Trial by Jury. — Any creditor who shall lay his claim before the receiver or receivers, or trustee or trustees, appointed in pursuance of this act, may, at the same time, declare his desire that a jury may decide thereon : and in like manner the said receiver or receivers, or trustee or trustees, may require that the same shall be referred to a jury ; and in either case, such request shall be entered on the minutes of the said receiver or receivers, or trustee or trustees, and thereupon an issue shall be made up between the parties under the direction of one of the justices of the supreme court, and a jury empan- eled, as in other cases, to try the same at the circuit court next to be holden in the county in which the said company carried on their business ; the verdict of such jury shall be subject to the control of the supreme court as in suits origi- nally instituted in the said court, and when rendered, if not set aside by the court, shall be certified by the clerk of the supreme court to the said receiver or receivers, or trustee or trustees, and such creditor or creditors shall be considered, in all respects, as having proved their debts for the amounts so ascertained to be due them. Sec. 455. Same— Majority of Receivers may Act— Re- moval of Receivers. — Every matter and thing by this act required to be done by the receiver or receivers, or trustee or trustees, of any such incorporated company, shall be good and effectual, to all intents and purposes, if performed by a ma- jority of them ; and it shall and may be lawful for the court of chancery to remove any receiver or receivers, or trustee or trustees, so to be appointed, and to appoint another or others in his or their place or places, or to fill any vacancy or vacan- cies which may occur, as the said court may deem expedient and proper. Sec. 456. Same— Distribution of Assets of Insolvent Corporation. — In payment of the creditors and distribution of the funds of any such company, the creditors shall be paid SUBSTITUTING RECEIVBE IN SUIT. 713 proportionally to the amount of their respective debts, ex- cepting mortgage and judgment creditors, when the judgment has not been by confession for the purpose of preferring cred- itors ; and that the said creditors shall be entitled to such dis- tribution on debts not due, making in such a case a lawful re- bate of interest, when interest is not accruing on the same ; and the surplus funds, if any,after payment of the creditors,and the costs and expenses as aforesaid, and the preferred stockholders, may be divided and paid to the general stockholders propor- tionally, according to their respective shares ; provided, how- ever, that the provisions of this section shall not be held or construed to in any way change, alter or affect the provisions of section sixty-three of said act/ Sec. 457. Same— Receiver may be Substituted in Pend- ing Suit. — In all suits in any court of law or equity which shall be pending in the name of any such incorporated company as aforesaid, at the time of the appointment of a receiver or receivers, or trustee or trustees, as aforesaid, it shall be lawful for the said courts, and they are hereby directed, on application to the said receiver or receivers, or trustee or trustees, to cause the said receiver or receivers, or trustee or trustees, to be substituted as plaintiff or plaintiffs, in the place and stead of the said company, or to carry on such suit in the name of the said company, for the use of the said receiver or receivers, or trustee or trustees. Sec. 458. Same— Receivers' Determination— Appeal to the Cliancellor from, — In case any such company or person or persons whatever shall think themselves or himself aggrieved by the proceedings or determination of the said receiver or receivers, or trustee or trustees, in the discharge of their duty, it shall be lawful for the party aggrieved to appeal to the chancellor, who shall, in a summary way, hear and determine the matter complained of, and make such order touching the same as shall be equitable and just ; and the chancellor, in the execution of the powers and authority under this act, is hereby vested with all the jurisdiction and 1 As amended by supplement of March 8, 1877; P. L. 1877. p. 74. 714 SALE OF MOKTGAGBD PEOPBETT. power which is lawful for the court of chancery to exercise ill suits depending in that court, and may proceed according to the rules, principles and practices of that court, except when otherwise directed by this act ; and all cases brought before the chancellor under this ac,t shall be considered as depending in the court of chancery, and the orders and de- cisions carried into effect the same as in other causes of equity jurisdiction. Sec. 459. Same— Appointment of Receiver— Corpora- tion not to Transact Business after— Forfeiture of Cliarter. — Whenever an injunction shall have been granted against any incorporated company, as provided for in this act, and a receiver or receivers, or trustee or trustees, shall have been appointed, as further provided for, and said injunction and appointment shall have continued for four months, it shall not be lawful for the stockholders or directors of said corpo- ration or any other person whatever to use or exercise the franchise of such corporation, or to transact any business in their name, or by color of their charter, except such as may be necessary to collect their property and assets, and to sell the same, and distribute the proceeds among the creditors and stockholders of said corporation, and that for all other purposes the chancellor may at any time, by order, in such suit or proceedings, with or without notice to any one, and without any further proceedings or judgment, declare the charter of said corporation forfeited and void.^ Sec. 460. Same— Mortgaged Property— Sale Free of Liens. — Where the property of an insolvent corporation, in the hands of a receiver or receivers, or trustee or trustees, appointed under the laws of this state, is incumbered with mortgages or other liens, the legality of which is brought in question, an4 the property is of a character materially to deteriorate in value pending the litigation, the court of chancery may order such receiver or receivers, or trustee or trustees, to sell the same clear of incumbrances, at public or private sale, for the best price that can be obtained, bringing the money into the court of chancery, there to remain subject 1 As amended by the act of March 8, 1877; P. L., 1877, p. 74. SALE OP mANCHISB. 715 to the same liens and equities of all parties in interest as was the property before it was sold, and to be disposed of as the said court, by its decree, shall order and direct. Sec. 461. Same— Franchise of Railroad, Canal, etc., may be Sold. — Whenever receivers or trustees, appointed or to be appointed by virtue of this act, for the creditors and stockholders of any company, shall have charge of any canal, railroad, tur-npike or other work of a public nature, in which the value of the work is dependent upon the franchise, and in the continuance of which the public as well as the corpo- rators and creditors of such company have an interest, it shall be lawful for such receivers or trustees to sell or lease the principal work for the construction whereof the said com- pany were incorporated, together with all the chartered rights, privileges and franchises belonging to said company and appertaining to such principal work ; and the purchaser or purchasers, lessee or lessees of such principal work, chartered rights, privileges and franchises, shall thereafter hold, use and enjoy the same during the whole of the residue of the term limited in the charter of said company, or during the term in such lease specified, in as full and ample a manner as the stockholders of such company could or miglit have used and enjoyed the same, subject, however, to all the restrictions, limitations and conditions contained in such charter ; provided that nothing in this section contained shall be so construed as to apply to or in any wise affect any corporation authorized by law to exercise banking privileges. Sec. 462. Same — Limitation of Act. — Nothing in this act contained relating to insolvent corporations shall apply to any incorporated literary or religious society, or any corpo- ration not formed for the purposes of gain, or destroy or impair any right or remedy already existing against any incorporated company. Sec. 463. Same — Process against a Corporation — Method of Service. — When any personal action shall be commenced against a corporation in any of the courts of law of this state, the first process to be made use of may be a summons, a copy whereof shall be served on the president or other head officer 716 SERVICE OP PROCESS ON COBPOEATION. of the said corporation, or left at his dwelling-house or usual place of abode, at least six entire days before its return ; and in case the president or other head of6cer of the said corpo- ration cannot be found in this state, to be served with process as aforesaid, and has no dwelling-house or usual place of abode within tliis state, then a copy of the said summons shall be served on the clerk or secretary of the said corpora- tion, if any there be, and if no clerk or secretary, then on one of the directors of the corporation, or left at his dwelling- house or usual place of abode, six entire days before its return. Sec. 464. Same— Service of Process on Foreign Corpo- rations. — In all personal suits or actions hereafter brought in any court of this state against any foreign corporation or body corporate, not holding its charter under the laws of this state, process may be served upon any officer, director, agent, clerk or engineer of such corporation or body corporate, either personally, or by leaving a copy thereof at the dwelling-house or usual place of abode of such officer, directors, agent, clerk or engineer, or by leaving a true copy of such process at the office, depot or usual place of business of such foreign cor- poration or body corporate, and such service shall be good and valid to all intents and purposes. Sec. 465. Same— Wlien Defendant in Court.— When the sheriff or other officer shall return such summons " served " or " summoned," the defendant shall be considered as appear- ing in court, and may be proceeded against accordingly. Sec. 466, Same— Service by Publication when. — In case the sheriff or other officer shall return such summons " not served " or " not summoned," and an affidavit shall be made to the satisfaction of the court that process cannot be served as mentioijpd in the eighty-seventh section of this act,^ then the court shall make an order directing the defendants to cause their appearance to be entered to the said action, on or before the first day of the next term of the said court, a copy of which order shall, within twenty days, be inserted in one of the public newspapers printed in this state, for at least six 1 See Supra, § 463. ACTION LIEN ON LANDS. 717 weeks, and a copy of the same order sliall also be posted up within the time aforesaid in three public places in this state, as shall be ordered by the said court, for at least six weeks, and if the defendants shall not appear within the time limited by such order, or within such further time as the court shall appoint, then on proof made of the due publication of such order, the court being satisfied of the truth thereof, shall order the clerk to make an appearance for the defendants, and thereupon the action shall be further proceeded in as if the said defendants had caused their appearance to be entered to the said action. Sec. 467. Same— Commencement of Action— Lien on Company's lands. — It shall not be lawful for any corpo- ration against whom any order shall be made for publication as aforesaid, after the entry of the said order in the minutes of the court, to grant, bargain, sell, alien or convey any lands, tenements or real estate in this state (in case the said summons issued out of the supreme court), or in the county in which the said summons shall have been issued (in case tlie said summons issued out of one of the inferior courts of common pleas in this state), of which said corporation shall be seized or entitled to at the time of making such order, until the plaintiff in the action shall be satisfied his legal demand, or until judgment shall be entered for the defendants ; and the said action shall be and remain a lien on such lands, tenements and real estate from the time of entering the said order for publication in the minutes of the court, and the said lands, tenements and real estate shall and may be sold on execution, as if no conveyance had been made by the said corporation. Sec 468. Same— Dissolution of Corporation does not abate Suits. — In any action now depending or to be com- menced in any court of record of this state against any corporation now or heretofore existing, or that may be created hereafter, if said corporation become dissolved by the expir- ation of its charter or otherwise, before final judgment obtained therein, the said action shall not abate by reason 718 ACTION AGAINST DIRECTORS AND STOCKHOLDERS. thereof ; but the dissolution of said corporation being sugges- ted, and the names of the trustees or other legal represent- atives of said corporation being entered upon the record, the same action shall proceed to final judgment against said trustees or other legal representatives by the name of the corporation. 1 Sec. 469. Against Directors and Stockholders — Liabili- ties of Officers and Directors Enforced by Action on the Case. — When any of the officers or directors of any company, or stockholders thereof, shall be liable, by the provisions of this act, to pay the debts of such company, or any part thereof, any person to whom they shall be so liable may have an action on the case against any one or more of the said officers, directors or stockholders ; and the declaration in such action shall state the claim against the company, and the gj'ound on which the plaintiff expects to charge the defendants personally. Sec. 470. Same— Enforcement by Bill in Chancery. — When any of the said officers, directors or stockholders are liable, as mentioned in this act, for the debts of any such company, or any part thereof, the person to whom they are so liable may, instead of thS other proceedings mentioned in this act, have his remedy against the said officers, directors or stockholders by a bill in chancery. Sec. 471. Same— Payment of Debts by OiBcers and Stockholders — Recover of Company. — Any officer, director or stockholder of a company who shall pay any debt of the company for which he is made liable by the provisions of this act, may recover the amount so paid in an action against the company for money paid for their use, in which action the property of the company only shall be liable to be taken, and not the prqjperty of any stockholder. Sec, 472. Same— Property of Director or Stock- holder—when to be sold for Company's Debt.— No sale or other satisfaction shall be had of the property of any director or stockholder for any debt of the corporation of which he is such director or stockholder till judgment shall have been obtained therefor against such corporation, and executioa 1 See ante, § 437. SALE OP PROPERTY ON. ^19 thereon returned unsatisfied, but any suit brought against any such director or stockholder for such debt shall stay, after execution levied or other proceedings to acquire a lien, until such returns shall have been made.^ 1 See ante, § 317. CHAPTER XXVII. NEW JERSEY CORPORATIONS— MISCELLANEOUS AND SUPPLEMENTARY PROVISIONS. Sec. 473. Application for special charters and for renewals— Notice of. Sec. 474. Manufacturing act of 1846. Sec. 475. Foreign corporations— Power to hold and mortgage lands in thlg state. Sec. 475a. Foreign corporation may hold land. Sbc. 475b. Same— Foreign benevolent corporations may hold land. Sec. 476. Franchise— Contracts for transfer or merging of— Must be re- corded. Sec. 477. Manufacturing company act of 1848— Repealer. Sec. 478. Manufacturing company act of 1849— Repealer. Sec. 479. Foreign corporations— Subject to act. Sec. 480. General repealer. Sec. 481. Taxation of property of corporations — Proviso. Sec. 481a. Same — Property of manufacturing corporations — How taxed. Sec. 481b. Same — Tax on franchise. Sec. 481c. Same — Amount of franchise tax to he paid hy certain cor- porations. Sec. 481d. Same — Annual reports by certain companies to state hoard of assessors. Sec. 481^ Same — Penalties for false statement, or neglect to make state- ment. Sec. 481f. Same — Proceedings of state hoard of assessors. Sbc. 481g. Same — The tax is a dfebt for which an action may he brought. Sec. 481h. Same — Injunction against company neglecting to pay tax. Sec. 482. Dividends — Time of declaring — Change of. SPECIAL CHARTEES AND EENEWALS. 721 Sec. 483. Corporate existence — Extension of. Sec. 483a. Same — Extension of when term in charter has expired. Sec. 483h. Saane — On filing certificate existence is extended. Sec. 483c. Same — Extension not to impair the rights of the state, Sbc. 488d. Same — Extension of corporate existence does not extend special exemptions from taxation. Sec. 484. Same — How the corporate existence extended. Sec. 485. Same — Charters not irrepealable. Sec. 486. Directors of water or manufacturing companies — Residence of — Majority must reside within state. Sec. 487. Shares — Change of par value of. Sec. 488. Same — Increase of number of by subdividing. Sec. 489. Capital stock — Increase by paying bonds. Sec. 489a. Same— Any company except railroad and canal companies can increase capital stock. Sec. 490. Corporation in hands of receiver — May mortgage property when. Sec. 490a. Same — What may come under this act. Sec. 491. Co-operative companies-^Eormation of — Capital. Sec. 492. Principal office — Removal of. Sec. 493. Insolvent company — Forfeiture of charter. Sec. 494. Same — May issue bonds. Sec. 495. Certificate of Stock — Lost — Kew certificate issued. Sec. 496. Same — Discharge of corporation from liability for issuing new cer- tificates. Sec. 497. Same — Proceedings to compel issuance of new certificate — Order to show cause. Sec. 498. Same — Proceedings on return of order. Sec. 499. Mining company— Assessment of stock— May be made by directors when. Sec. 500. Stock issued for property purchased — Guaranteed dividends. Sec. 501. Incorporation of company— Where incorporator is dead another may be appointed. Sec. 502. Creation of capital stock by. Sec. 503. Rights of corporation holding stock of other corporations. Sec. 473. Application for Special Charters and for Eenewals— Notice of.— When any person or persons shall be disposed to make application to the legislature of this state for an act of incorporation for any purpose whatever, or any company or association, already incorporated, shall be disposed to make application for a renewal of their charter, or any alter- ation in the law so incorporating them, or when any appli- cation shall hereafter be made for the purpose of obtaining a law authorizing the erection of a bridge over any navigable 46 722 COMING IN UNDEE ACT. water in this state, it shall be the duty of such .person or persons so applying, or the directors or stockholders of such incorporation, or some of them, to signify his or their inten- tion, by advertisement, to be inserted for at least six weeks, successivel}^ in one or more of the newspapers published in the county where the objects of such associations or corpor- ation are carried, or intended to be carried, into effect, and if no newspaper be published in such county, then in the news, paper or newspapers published nearest to the same, and specify the object of such incorporation or application, the amount of capital stock requisite to carry their objects into effect; and, in case of an application for any alteration in any charter already granted, it shall be the duty of the stockholders or directors of such incorporation to state in such notice, speci- fically, the alteration so to be applied for; and that due proof shall be made of such notice having been published previous to leave being given to bring in any bill to comply with such application. Sec. 474. Manufacturing Act of 1846 -Companies Formed under May come under this Act. — Any company formed under and pursuant to an act entitled " An act to authorize the establishment and to prescribe the duties of manufacturing companies," approved the twenty-fifth day of February, eighteen hundred and forty-six, and the several supplements thereto, may come under and be subject to the provisions and liabilities of this act, in the same manner as if formed under the same, if such company make a certificate, under the hands of the president and directors of the com- pany, that said company desires to come under the said provisions and liabilities ; which certificate shall be acknowl- edged, recorded and filed in the same manner as the certificate required hf this act ; and such company, on the recording and filing of said certificate as aforesaid, shall be free from the liabilities and provisions of the said act under which said company was formed ; provided, that nothing in this section contained shall be held to affect any transaction, liabilities or debts of any such company heretofore done, accrued or contracted. TOBBI6N COEPOKATIONS — POWER TO HOLD LANDS. 723 Sec. 475.— Foreign Corporations — Power to liold and Mortgage Lands in tliis State — Whereas, by the laws of this state, corporations are authorized to carry on a portion of their business out of this state, and such general provision is- embraced in the laws of other states granting such powers ; and whereas, doubts have arisen as to whether foreign cor- porations can hold, mortgage and convey lands in this state ; therefore, it shall be lawful for foreign corporations to acquire, hold, mortgage, lease and convey such real estate in this state as may be necessary for the purpose of carrying on the bus- iness of such corporations in this state, or such as they may acquire by way of mortgage or otherwise in the paj'ment of debts due to said foreign corporation ; and foreign corpora- tions having charter authority to engage in the business of acquiring, holding, mortgaging, leasing and conveying real estate, are hereby authorized to pursue the conduct of such business in this state, and to that end to acquire, hold, mort- gage, lease and convey real estate in this state ; and any con- vej'ances or mortgages to or by such foreign corporations of lands in this state heretofore made, are hereby declared to be good and valid in this state, both in law and equity.^ Sec. 476a.— Foreign Corporations may Hold Land.— It shall be lawful for any corporation incorporated, created, registered or chartered by any foreign state, kingdom or government, to hold, mortgage, lease and convey such real estate in this state as may be necessary for the purpose of carrying on the business of such corporation in this state, or such real estate as it may acquire, by way of mortgage or otherwise, in the payment of debts due such corporation; provided, such state, kingdom or government, under whose laws such corporation was created, shall not be at the time of such purchase at war with the United States.^ Sec. 475b. — Same — Foreign Benevolent Corporations: may Hold Land. — It shall be lawful for foreign corporations. ^ As amended by the supplement amble, but as there is no express re* of April 11, 1887; N. J. L. 1887, p. pealer. 157. The supplement omits the pre- ^ N. J. L. 1882, p. 137. 724 FKANCHISE — TEANSPBB AND MORTGAGING. created and organized for charitable or benevolent purposes, to hold, mortgage, lease and convey such real estate in this state as may be devised or conveyed to them for the purposes of their creation, anything in the laws of this state to the contrary notwithstanding.^ Sec. 476. Contracts for Transfer or Merging of Fran- chise must be Recorded.— All contracts or agreements for the sale, letting, leasing, consolidating, merging, or in any manner disposing of or transferring the franchises, privileges, or any part thereof, of any company or organization incor- porated by or under the laws of this state, shall be acknowl- edged or proved as conveyances of land in this state are authorized to be acknowledged and proved, and shall be recorded in the office of the secretary of state within two months after the execution thereof, at the proper cost of the parties thereto ; and unless such contract or agreement is lodged with the secretary of state for record within thirty days from the date of the execution thereof, the same shall be of no effect until recorded ; and copies of the said record, duly certified by the secretary of state, shall be received in evidence in any court of this state, and be as good, effectual and available in law as if the original contract or agreement was then and there produced; provided, nevertheless, that this act shall not be held or construed by any court, or by any officer or person whomsoever, as having rendered, or as rendering, invalid or of no effect any such contract or agree- ment as in said act mentioned, as between the parties to such contract or agreement, nor in favor of or for the benefit of any person or corporation having notice of the contract or agreement, although such contract or agreement has not been or may not be lodged for record or recorded according to the directions ff said act; but every such contract or agreement which has not been, and which may not hereafter be, lodged for record and recorded pursuant to the directions of said act, shall, between the parties to such contract or agreement, and as to every person or corporation having notice thereof, have the same force and effect as if such contract or agree- 1 N. J. L. 1883, p. 220, MANUFACTURING ACTS, 725 meut had been lodged for record and recorded pursuant to the directions of said act, and such contracts or agreements may be lodged for record and recorded at any time, and from the time of lodging the same for record shall be considered as duly notified to all persons entitled to notice thereof. Sec. 477. Manufacturing Company Act of 1846 — Repealed. — "An act to authorize the establishment and to prescribe the duties of manufacturing companies," approved February twenty-fifth, eighteen hundred and forty-six, and the several supplements thereto, are hereby repealed; but no company established under the said act or any of said supple- ments, or any person having claims or demands against said company, shall be affected by the repeal thereof. Sec. 478. Manufacturing Company Act of 1849 — Kepealer. — " An act to authorize the establishment and to prescribe the duties of companies for manufacturing and other purposes," approved March second, eighteen hundred and forty-nine, and the several supplements thereto, are hereby repealed ; but no company established under the said act, or any of the said supplements, or any person having claims or demands against said company, shall be affected by the repeal thereof. Sec. 479. Foreign Corporations Subject to Act. — Foreign corporations doing business in this state shall be subject to all the provisions of this act, so far as the same can be applied to foreign corporations. Sec. 480. General Kepealer. — All acts and parts of acts, general or special, inconsistent herewith, be and the same are hereby repealed. Sec 481. Taxation of Property of Corporations- Proviso. — All the real and personal estate of every corpora- tion* incorporated by any act of the legislature, or by the filing of a certificate or otherwise under any general law of this state, shall be taxed the same as the real and personal estate of an individual ; provided, however, that the pro- visions of this section shall not apply to railway, turnpike,, insurance, canal or banking corporations, or to savings banks. 726 TAXATION OP FRANCHISE. as to cemeteries, church property, or purely charitable or educational associations.^ But all corporations, whether manufacturing corporations or otherwise, organized or acting under the provisions of this act, or the act to which this is a supplement, shall hereafter be taxed upon their capital stock at its actual value and accumulated surplus.^ Sec. 481a. Same— Property of Manufacturing Cor- poration — How Taxed. — All real and personal estate of every manufacturing company or corporation shall be taxed the same as the real and personal estate of an individual.^ Sec. 4811). Same— Tax on Francliise.— Every telegraph, telephone, cable or electric light company, every express company, not owned by a railroad company and otherwise taxed, every gas company, palace or parlor or sleeping car company, every oil or pipe-line company, and every fire, life, marine or accident insurance company, doing business in this state, except mutual fire insurance companies which do not issue policies on the stock plan, shall pay an annual tax, for the use of the state, by way of a license for its corporate franchise, as hereinafter mentioned ; provided, however, that no company or society shall be construed to be a life insurance company doing business in this state within the purview of this act which, by its act or certificate of incorporation, shall bave for its object the assistance of sick, needy or disabled members, the defraying of funeral expenses of deceased members, and to provide for the wants of the widows and families of members after death.* Sec, 481c. Same— Amount of Franchise Tax to be paid by Certain Corporations. — Each telegraph, telephone, cable and express company shall pay to the state a tax at the rate of two per centum upon the gross amount of its receipts so returned or «scertained : that each gas company and electric light company shall pay to the state a tax at the rate of one- 1 As amended by act of March T, manufacturing companies is taxed 1878, which strikes out the word the same as that'of an individual, "hereafter "after incorporated. By ^^ N. J. L. 1879, p. 348, § 2. act of March 14, 1879, corporations ^ N. J. L. 1886, p. 345. are taxed on capital and surplus. By ' N. J. L. 1884, p. 232, § 1. act of May 11, 1886, the property of AMOUNT OF FRANCHISE TAX TO BE PAIB. 727 half of one per centum upon the gross amount of its receipts so returned or ascertained, and five per centum upon the dividends of said company in excess of four per centum so earned or declared ; that each oil or pipe-line company shall p>y to the state a tax at the rate of eight-tenths of one per centum upon the gross amount of its receipts so returned or ascertained ; that each insurance company, other than life, shall pay to the state a tax at the rate of one per centum upon the gross amount of its premiums so returned or ascertained; that each life insurance company, incorporated under the laws of this state, shall pay to tl^ state an annual franchise tax of one per centum upon the amount of its surplus on the thirty-first day of December next preceding the time of such payment as fixed in section five, as the same shall be ascer- tained by the commissioner of insurance of this state, accord- ing to the actuaries' table of mortality, and four per centum interest ; that each life insurance company, not incorporated under the laws of this state, but doing business therein, shall pay to the state an annual tax of two per centum on the amount of premium collected during the year ending Decem- ber thirty-first, as aforesaid, from residents of this state, except on the amount of premiums collected from industrial insurance, on which amount each company shall pay to the state an annual tax of one per centum per annum, deducting from said premiums the amount of dividends actually allowed in rebate of the same, and the amount paid durin'g said year to residents of this state for claims under matured policies; the secretary of state, acting as the commissioner of insurance, shall ascertain and report to the state board of assessors all the facts necessary to enable the board to ascertain and fix the amount of tax to be paid by life insurance companies under this act ; that each parlor, palace or sleeping car com- pany shall pay to the state treasurer a tax at the rate of two per centum upon the gross amount of its receipts so returned or ascertained ; if an)' oil or pipe-line company has part of its transportation line in this state and part thereof in another state or states, such company shall return a statement of its gross receipts for transportation of oil or petroleum over its 728 ANNUAL EEPORTS. whole line, together with a statement of the whole length of its line and the length of its line in this state ; such cuniiiuiiy shall pay tax to the state at the aforesaid rate upon such proportion of its said gross receipts as the length of iLs line in this state bears to the whole length of its line ; that all other corporations incorporated under the laws of this state, and not hereinbefore provided for, shall pay a yearly license fee or tax of one-tentli of one per cent, on the amount of the capital stock of such corporations ; provided, that this act shall not apply to railway, canal or banking corporations, or to savings banks, cemeteries or religious corporations, or purely charitable or educational associations or manufacturing companies, or mining companies carrying on business in this State.-' Sec. 4:81d. Same— Annual Reports by Certain Companies to State Board of Assessors. — On or before the first Tuesday of May next, and annually thereafter, it shall be the duty of the president, treasurer, or other proper officer of every cor- poration of the character specified in the preceding section, to make report to the state board of assessors, appointed and to be appointed under the act entitled "An act for the taxation of railroad and canal property," stating specifically the follow- ing particulars, namely : Each telegraph, telephone, cable and express company, not owned by a railroad company and otherwise taxed, shall state the gross amount of its receipts from business done in this state for the year preceding the first day of January prior to the making of such report ; each electric light company shall state the gross amount of its receipts for light or power supplied within this state for the year preceding the first day of February prior to the making of such report ; each gas company shall state the gross amount of its receipts for business done in this state during the same time, and tne amount of dividends earned or declared for the same period; each parlor, palace or sleeping car company shall state the gross amount of its receipts for fare or tolls for transportation of passengers within this state during the same time ; each oil or pipe-line company engaged in the transpor- > N. J. L. 1884, p. 234, § 4. PENALTIES FOR FALSE STATEMENT. 729 tation of oil or crude petroleum shall state the gross amount of its* receipts for the transportation of oil or petroleum through its pipes or in and by its tanks or cars in this state during the same time ; each fire, marine or accident insurance company shall state the total amount of premiums received by it for insurance upon the lives of persons resident, or property located within this state, during the same time.^ Sec, 481e. Same — Penalties for False Statement, or Neglect to make Statement. — If any officer of any company required by this act to make a return as aforesaid, shall, in such return, make a false statement, he shall be deemed guilty of perjury ; if any such company shall neglect or refuse to make such return, within the time limited as aforesaid, the state board of assessors shall ascertain and fix the amount of such receipts in such manner as may be deemed by them most practicable, and the amount fixed by them shall stand as the basis of taxation of such company under this act.^ Sec, 481f. Same — Proceedings of State Board of Assessors. — The state board of assessors shall certify and report to the comptroller of the state, on or before the first Monday of June in each year, a statement of the amount of gross receipts as returned by each company to, or ascertained by, the said board, and the amount of tax due thereon respectively, at the rate fixed by this act ; such tax shall thereupon become due and payable, and it shall be the duty of the state treasurer to receive the same ; if the taxes of any company remain unpaid on the first day of July, after the same becomes due, they shall thenceforth bear interest at the rate of one per cent, for each month until paid ; the state board of assessors shall have power to require of any corporation subject to tax under this act, such information or reports touching the affairs of such company as may be necessary to carry out the provisions of this act, and may require the pro^ duction of abstracts of the books of such companies, and may swear and examine witnesses in relation thereto ; the com- troUer shall receive as compensation for his services under 1 N. J. L. 1884, p. 232, § 2. " n. J. L. 1884, p. 233, § 3. 730 . NEGLECT TO PAY TAX — INJUNCTION. this act, and under the act entitled, " An act for the taxa- tion of railroad and canal property," approved April' 10th, eighteen hundred and eighty-four, the sum of five hundred dollars annually.^ Sec. 481g. Same— The Tax is a Debt for which an Action may he Brought.— Such tax, when determined, shall be a debt due from such company to the state, for which an action at law may be maintained after the same shall have been in arrears for the period of one montli ; such tax shall also be a preferred debt in case of insolvency .^ Sec. ISlh. Same— Injunction Against Company Neg- lecting to Pay Tax.— In addition to other remedies for the collection of such tax, it shall be lawful for the attorney- general, either of his own motion or upon the request of the state comptroller, whenever any tax due under this act from any company shall have remained in arrears for a period of three months after the same shall have become payable, to apply to the court of chancery, by petition in the name of the state, on five days' notice to such corporation, which notice may be served in such manner as the chancellor may direct, for an injunction to restrain such corporation from the exer- cise of any franchise, or the transaction of any business within this state until the payment of such tax and interest thereon, and the costs of such application, to be fixed by the chancellor; the said court is hereby authorized to grant such injunction, if a proper case appear, and upon the granting and service of such injunction, it shall not be lawful for such company thereafter to exercise any franchise or transact any business in this state until such injunction be dissolved.^ Sec. 482. Dividends— Time of Declaring— Change of.— When a company incorporated under the laws of this state is limited by its charter to certain fixed times for declaring dividends, or for holding its annual meetings of stockholders for the election of directors, such corporation shall have power at any time to change the time or times for declaring its dividends and holding said annual- meetings, upon the 1 N. J. L. 1884, p. 235, § 5. » N. J. L. 1884, p. 236, § 7. 2 N. J. L. 1884, p. 235, § 6. EXTENSION AFTER EXPIRATION OF CHARTER. 731 Tote of two-thirds in interest of its stockholders, at any reg- ular meeting of said stockholders.^ Sec. 483. Corporate Existence— Extension of .—It shall be lawful for any corporation heretofore or hereafter created under or by virtue of any law of this state, at any time before the expiration of its charter, or of the period named in its certificate of organization, to file in the office of the secretary of state a certificate under its common seal, attested by the signature of its presiding officer, declaring its desire that the period of its existence as such corporation shall be extended for any time therein mentioned, not exceeding fifty years. ^ Sec. 4S3a. Same — Extension after Term in Charter has Expired. — The supplementary act of 1887, provides that any corporation that has failed, during the period for its con- tinuance named in its charter or certificate of incorporation, to file with the secretary of state a certificate extending its corporate existence, as permitted by statute, but has con- tinued, and still continues its organization and the transac- tion of business, may still file such certificate at any time within thirty days from the passage of this act, naming tlierein a period not exceeding fifty years. Section two of the same act provides that upon filing such certificate the period of the existence of such corporation shall be revived and extended as declared in such certificate as fully as if said period had been named in the original charter or certificate of organization of such corporation, but nothing herein contained shall be construed to interfere with the right of the State of New Jersey, reserved by any law now or hereafter existing, to acquire the property and fran- chises of any such corporation, or at any time to abolish or repeal, alter or amend the charter of the same, nor shall this act be construed to continue any irrepealeable or othef con- tract with the state contained in any charter, nor shall this act apply to any corporation against which quo warranto or other proceedings for dissolution are pending.* 1 N. J. L. 1876, p. 74; Supp. Rev. « ]sr. J. L. 1887, p. 137, § 1. 145. * N. J. L. 1887, p. 137, § 2. 2 N. J. L. 1876, p. 235, § 1; Supp. to Rev. 150. 732 EXTENSION — EFFECT ON EIGHTS OP STATE. The supplementary act of 1889^ provides that it shall be lawful for any corporation hitherto created under or by virtue of any law of this state, which has maintained its organiza- tion, but which may have failed to renew or extend its cor- porate existence, as provided by law, to do so for a period not exceeding fifty years, by filing a certificate to that effect in the department of state ; provided, that such corporation shall be subject to all cliarges, fees and taxes now imposed by law upon like corporations. Sec. 483b. Same— On Filing Certificate Existence is Extended. — Upon filing such certificate the period of the existence of such corporation shall be extended as therein declared as fully as if the said period had been named in the original charter or certificate of organization of such corpo- ration. ^ Sec. 4:83c. Same— Extension not to Impair the Rights^ of the State. — Nothing herein contained shall be construed to interfere with the right of the state, reserved by any law now or hereafter existing, to acquire the property or fran- chises of any such corporation, or at any time to abolish or repeal, alter or amend the charter of the same ; nor shall this act be construed to continue any irrepealable or other con- tract with the state contained in any charter beyond the time originally fixed for its expiration ; nor shall this act apply to any corporation against which quo warranto or other proceedings for dissolution are pending.^ Sec. 483d. Same— Extension of Corporate Existence does not Extend Special Exemptions from Taxation.— Nothing contained in the act to which this is a supplement shall be construed as continuing in force and operation any special provision relating to taxation, or exemption there- from, in tl^ charter of any corporation whose corporate existence may have been, or hereafter shall be, extended in conformity with the terms of said act ; but each corporation whose corporate existence may have been, or shall be, extended as authorized thereby, shall be assessed for taxes in 1 N. J. L. 1889, p. 367, § 1. » N. J. L. 1889, p. 367, § 3. 2 N. J. L. 1889, p. 367, § 2. HOW CORPORATE EXISTENCE EXTEOTJBD* 733 accordance witli the provisions of the general law of this state relating to taxation of corporations.^ Sec. 484. Same— How the Corporate Existence Ex- tended. — Upon making and filing such certificate, the period of the existence of such corporation shall be extended as declared in such certificate as fully as if the said period had been named in the original charter or certificate of organiza- tion of such corporartion.2 Sec. 485. Same— Charters not Irrepealable,— Nothing herein contained shall be construed to interfere with the right of the State of New Jersey, reserved by any law now or here- after existing, to acquire the property and franchises of any such corporation, or at any time to abolish or repeal, . alter or amend the charter of the same, nor shall this act be construed to continue any irrepealable or other contract with the state contained in any charter beyond the time originally fixed for its expiration.^ Sec, 486. Directors of Water or Manufacturing Com- panies—Residence of— Majority must Reside within State. — It shall not be necessary for any of the directors of any water or manufacturing company heretofore or which may be hereafter organized under the act to which this is a further supplement, or any other act, general or special, or in pursu- ance of any special charter, to reside in any specified township or city in this state, although it may be so required by any such special act or special charter, neither shall it be necessary to limit the number of directors of any such company so organized or which may be so organized under any of such acts or under any such special charter, to the number named therein or in any of them ; provided, that the directors of any such company shall not be less than three in number ; and provided, that a majority of the directors of any such company shall be residents of this state.* It is enacted by the supplementary act of 1881^ that it shall 1 N. J. L. 1882, p. 76, § 1. « N. J. L. 1876, p. 235, § 3; Supp. = N. J. L. 1876, p. 235, § 2; Supp. to Rev., p. 150. to Rev. 150. * N. J. L. 1878, p. 212. s N. J. L. 1881, p. 122, § 1. 734 # CHANGE OP PAR VALUE OF SHARES. not be necessary for more than one of the directors of any- cotton, woollen, chemical or other manufacturing company organized under any law of this state, to be an actual inhab- itant and resident of this state ; provided, that every such company having only one of its directors an actual inhabitant and resident of this state shall, in addition to the matters required by the first section of this act, entitled " A supple- ment to act entitled 'An act concerning corporations,'" approved April seventh, one thousand eight hundred and seventy-five, which supplement was approved March eighth,- one thousand eight hundred and seventy-seven, also at the same time and manner as therein provided, designate and file in the office of the secretary of state of this state the name and place of abode of such resident director. Sec. 487. Shares — Change of Par Talue of. — Any com- pany organized under the provisions of said act, may change the par value of the shares of its capital stock by filing in the office of the secretary of state the assent, in writing, of stock- holders representing two-thirds in value of the capital stock for the time being, and also a certificate, under the hands and seals of said stockholders, or their legal representatives, stat- ing the par value to which it is proposed to change said shares which said certfficate shall be proved or acknowledged and. recorded in the manner provided in said act for the original certificate of organization, and the certificate of the secretary of state that such assent and certificate have been filed in his office shall be taken and accepted as evidence of such change of par value in any court of this state ; provided, however, such assent and certificate shall be filed as aforesaid within thirty days after the execution of the same by said stock- holders.^ Sec. 488. • Same— Increase of Number of by Subdividing. — Any company or association organized under the act to which this is a supplement, or otherwise, may increase the number of its shares of stock by subdividing the amount of each share, including therein as well the par value thereof a& IN. J. L. 1878, p. 157. mCEEASE OP CAPITAL BY PAYING BONDS. 735 also any assessments actually paid in thereon, into shares of such equal par value as it may agree on, by filing in the ofiice of the secretary of state, the assent in writing of stock- holders representing two-thirds in value of the capital stock for the time being, and also a certificate under the hands and seals of said stockholders or their legal representatives, stating the par value at which it is proposed to fix said shares, which certificate shall be proved or acknowledged and recorded, as required of deeds of real estate, in the oifice of the clerk of the county where the principal office or place of business of such company in this state shall be established, and after being so recorded shall be filed in the office of the secretary of state, and the certificate of the secretary of state that such assent and certificate have been filed in his office, shall be taken and accepted as evidence of such subdivision of shares and alteration of their par value in any court of this state i provided, however, that such assent and certificate shall be filed as aforesaid within thirty days after the execution of the same by said stockholders ; and provided further, that in no case shall the capital stock of any sugh company filing such certificate and assent be increased thereby beyond the amount limited in its charter or certificate of organization, except in the manner now provided by the act to which this is a supple- ment.^ Sec. 489. Capital Stock— Increase of by paying Bonds. — In all cases where the bonds of any corporation created by or organized under any act of tlie legislature of this state have been heretofore issued, and which bonds are due or about to become due, or may be paid by such corporation at its option, it shall be lawful for the board of directors of such corporation to increase its capital stock in order to provide means for the payment of such bonds, and for that purpose to issue and sell the shares of such increase of capital stock for eash only, and in such manner as they deem best, at a price not below the par value of such shares; but no greater number of shares shall be issued or sold than shall be sufficient to raise an amount sufficient for the payment of the principal 1 N. J. L. 1879, p. 88. 736 WHO MAY INCREASE CAPITAL STOCK. sums secured by the said bonds and the interest accrued thereon ; and certificates of stock shall be issued to the pur- chasers of such additional shares, upon payment in cash of the purchase price thereof ; and the holders of the said shares of the increased capital stock hereby authorized shall possess and exercise the same rights and privileges in all respects as are possessed and exercised by the holders of the other shares of the capital stock of said corporation (other than the pre- ferred stock thereof) : and the proceeds of the sale of the shares representing such increase of said capital stock shall be applied to the payment of such outstanding bonds as afore- .said, and to no other purpose whatever.^ If the capital stock of any corporation shall be increased, as is authorized by the preceding section of this act, it shall be "the duty of its president and secretary, within thirty days thereafter, to make a certificate, under their respective oaths or affirmations, setting forth what bonds of such corporation have been paid by the proceeds of increased capital stock and the number of shares of the increased capital stock thereof that have been issued for that purpose, and to cause such certificate to be filed and recorded in the office of the secre- tary of state of this state.^ Sec. 4:89a. Same— Any Company except Railroad and Canal Companies may increase Capital Stock.— It shall be lawful for any corporation of this state, whether organized under a special act of incoi-poration or under general laws, excepting always railroad and canal corporations, to increase its capital stock to such an amount as luay be determined by its board of directors ; provided, that such corporation shall, previous to the issuing of any share of stock representing such increase of its capital, file in the office of the secretary of state for rtiis state a certificate, signed by its president and under its corporate seal, attested by its secretary, setting forth the amount of the proposed increase of capital and the number of shares of stock into which the same is to be divided, and also the assent, in writing, of stockholders owning at least 1 N. J. L. 1882, p. 39, § 1. a N. J. L. 1882, p. 39, § 2. MORTGAGING PEOPERTY IN HANDS OF EECEIVEK. 737 two-thirds in value of the existing capital stock to said pro- posed increase of capital.^ Sec. 490. Corporation in hands of Receiver— May Mortgage Property when. — Any corporation which now is, or hereafter shall be, in the hands of receivers, or of a receiver by virtue of proceedings in the court of chancery, may, when- ever such corporation shall be re-organizing or arranging its property and debts to resume the management and control of its property and business, with the consent of the court of chancery, mortgage its property and franchises for such amount as may be necessary, at a rate of interest not exceed- ing the rate of interest secured by any pre-existing mortgage of real estate made by such corporation. ^ Sec, 490a. Same— What Companies may come under this Act. — Any company formed under and pursuant to " An act to authorize the establishment and to prescribe the duties of companies for manufacturing and other purposes," approved the second day of March, one thousand eight hundred and forty-nine, and the several supplements thereto, may come under and be subject to the provisions and liabilities of the act to which this is a supplement, in the same manner as if formed under the same, if such company make a certificate, under the hands of the president and directors of the company, that said company desires to come under the said provisions and liabilities, which certificate shall be acknowl- edged, recorded and filed in the same manner as the certifi- cate required by this act ; and such company, on the record- ing and filing of said certificate as aforesaid, shall be free from the liabilities and provisions of the said act under which said company was formed ; provided, that nothing in this supple- ment contained shall be held to affect any transactions, liabilities or debts of any such company heretofore done, accrued or contracted.^ Sec. 491. Co-operative Companies— Formation of — Capital. — For the pui-pose of co-operation in carrying on any manufacturing or co-operative trade authorized by the tenth 1 N. J. L. 1889, p. 155. » N. J. L. 1879, p. 348, § 1. 2 N. J. L. 1878, p. 29. 47 738 REMOVAL OP PRINCIPAL OFFICE. section ^ of the act to which this is a supplement, seven or more persons may associate themselves with a capital of not less than one thousand nor more than fifty thousand dollars.^ Sec. 492, Principal Office— Removal of.— It shall be lawful for any corporation existing ijnder and by virtue of the laws of this state, whether created by special charter or otherwise, to locate its principal office at such place in tliis state as may be for the best interests of its business, irrespec- tive of the location of the principal office named in the charter or articles of organization of the corporation ; provided, that such corporation cause to be made and filed a certificate, in writing, in manner hereinafter mentioned : such certificate shall set forth, first, the name of such corporation and the city or town in which it is located by charter, or in which its principal office had previously been located, and, second, the place, town or city in which it proposes to locate the principal office for its business and dealings in the place and stead of that referred to in last preceding paragraph, and which said certificate shall be signed by the board of directors, or a majority of said board, and filed in the office of the secretary of state, and to which certificate shall be affixed the official seal of said board and the affidavit of the secretary or acting secretary of such corporation that the said certificate is made by the authority of the board of directors or managers of such corporation, as expressed by a two-thirds vote of the members present at a regular or special meeting of said board called for that purpose ; provided, such removal is not outside of this state.* Sec. 493. Insolvent Company— Forfeiture of Charter, — The charter of no corporation shall be forfeited and void, notwithstanding the injunction and appointment mentioned in section eighty -three* of the act to which this is a supplement shall have continued for four months ; provided, said corpora- tion shall have been heretofore managed and doing business under and order of the court of chancery .^ 1 Ante, § 384. * Ante, § 459. " N. J. L. 1880, p.- 326. 6 jj . j. l. 1377^ p. 75^ § 3, » K. J. L. 1880, p. 49. ISSUING BONDS. 739 Sec. 494. Same — May issue Bonds. — In any case where any company organized under any general or special act of the legislature of this state for manufacturing purposes has heretofore become, or is, or may become insolvent, it shall be lawful for the directors of the said company, in the name of the company, the consent of two-thirds of the stockholders^ in interest, or their legal representatives, having been first obtained, to issue bonds or additional stock, or both, in full or part payment or settlement of any or all claims against such company, with the consent of the claimants, and subject to the approval of the chancellor in case a receiver has been appointed ; in any case where there has been no election for directors after the insolvency became known to the stock- holders, or after a receiver has been appointed, it shall be necessary to obtain the assent of two-thirds of the stock- holders to the issue of such bonds or stock, and in all cases^ where stock is issued the total amount thereof shall not exceed the amount of the claims against the company for which stock is taken, and the amount so issued, together with the capital stock already authorized, although the same may not have been fully issued, shall be taken and considered to be the limit of the capital stock of the company ; and a state- ment shall be filed with the secretary of state showing the whole amount of capital stock so authorized and issued ; if bonds are issued, they may be made convertible into stock,, at the option of the holders, if the directors deem it for the best interest of the company, and in that case the amount of such bonds must be included in the statement filed with the secretary of state, showing the amount of capital stock authorized ; and any stock issued under the provisions of this act may be issued in whole or in part as preferred stocky bearing interest not exceeding six per centum per annum,, with or without further participation in the earnings of the company : if a receiver has been appointed, it shall be lawful for the chancellor to discharge or relieve him from further service on being shown that the directors have made provi- sion for all of the claims against the company, according to this act or otherwise, excepting only such claims as were 740 LOST CBETIFICATE OF STOCK. previously secured by mortgage, and to permit said company by its directors and officers, to resume and conduct its business and exercise all the franchises existing at the time of the insolvency.' Sec. 495. Certificate of Stock Lost— New Certificate Issued. — Every corporation of this st^te shall have the power ito issue a new certificate or certificates of stock in the place •of any certificate or certificates theretofore issued by it, but which, it is alleged, have been lost or destroyed ; and the directors authorizing such issue of a new certificate or certi- ficates may, in their discretion, require the owner of such lost •or destroyed certificate, or his legal representatives, to give the •corporation a bond, in such sum as they may direct, as surety .against any claim that may be made against such corpora- tion ; but said directors may direct such issue of a new cer- tificate or certificates without requiring any bond as securify, when, in their judgment, it is proper for the corporation so to do ; when application is to be made under section two of this act,^ the corporation shall require a bond to be given equal to the market value of the stock lost or destroyed.^ Sec. 496. Same — Discharge of Corporation from Lia- bility for Issuing New Certificates. — When any corporation 4shall have issued a new certificate or certificates, as authorized in section one of this act,* to the owner of lost or destroyed cer- tificates representing stock exceeding the par value of twenty thousand dollars, such corporation may apply to the chancellor, •or any justice of the supreme court, for an order requiring all persons in interest to show cause, at the time and place to be named therein, why the corporation should not be discharged of and from all liability, to any and all persons, by reason of the issuing of such new certificate or certificates of stock as .aforesaid, and why all persons claiming any title to or interest in the old certificate or certificates, so lost or destroyed as :aforesaid, should not be barred from all rigtt of action there- .xinder ; that upon the presentation of such application, said ohancellor, or any justice of the supreme court to whom the jsame shall be presented, shall make an order directing all ^ N. J. L. 1882, p. 167. 8 N. J. L. 1882, p. 205, § 1. ^ Post, § 496. . 4 Ante, § 495. DISCHAKGE FEOM LIABILITY ON NEW CERTIFICATE. 741 persons in interest to show cause as aforesaid ; the application shall be by petition, duly verified by one of the officers of the corporation, and shall state the name of the corporation, the number and date of the certificates, if known, the number of shares of stock named therein, to whom issued, the name of the owner thereof at the time the same was lost or destroyed and of the present owner, as far as known ; the chancellor or justice of the supreme court, in making the order to show cause, shall direct that service of said order be made either within or without the state, upon the person named in the petition as the owner of the stock so lost or destroyed, and shall also direct a copy of said order to be served upon all others in interest, by publication thereof in one or more news- papers in this state, or elsewhere, and said order shall require said alleged owner and all other persons in interest to appear and show cause, as required by said order ; and such publica- tion shall be once a week for not less than two weeks, or more than four weeks ; the order to show cause shall be returnable not more than six weeks from the time of the presentation thereof to such chancellor or justice, and shall require all persons- claiming any interest in said stock to appear on the return day of said order, and show cause as aforesaid ; and on the returrt day of said order, and upon proof of the service and publication as aforesaid, said chancellor or said justice shall proceed in a summary manner, and in such mode as he may deem advisable, to inquire into the truth of the facts stated in the petition, and shall hear such proof and allegations as may be offered by or in behalf of the petitioner relative to the subject-matter of said application ; and if, upon such inquiry, the said chancel- lor or justice shall be satisfied that the person to whom the ■ new certificate of stock was issued by such corporation was- the lawful owner at the time of said loss or destruction of said, certificates of the capital stock of said corporation, for which- said new certificate was issued by said corporation, and that the new certificate is for the number of shares so lost or destroyed as aforesaid, and that the old certificate or certificates cannot, after due diligence, be found, and if no person shall appear on such return day claiming to be the owner of or 742 COMPBLLINa ISSUING NEW CERTIFICATE. interested in, the old certificate so lost or destroyed, other than the person to whom the new certificate or certificates were so issued as aforesaid, then said chancellor or justice may, in their discretion, make an order adjudicating that the holder of the new certificate , or certificates was thenowner of the old certi- ficates so lost or destroyed, and decreeing that said old certi- ficates shall be of no further validity or effect whatsoever and shall be absolutely void, and that no person shall thereafter have or maintain any right of action thereunder in any way thereafter, providing in such order for the protection of the rights of infants or persons under legal disabilities (if any such appear by the testimony to exist), and such order so made shall be filed in the office of the secretary of state ; a^nd upon such filing such order shall be notice to all persons, and all persons shall be bound thereby, but any bona fide holder of the stock represented by such lost or destroyed certificate or certificates may, at any time within sixty days after the date of such filing in the office of the secretary of state, apply to have said order vacated, and thereupon such proceedings shall be had by said chancellor or justice for a rehearing as they shall direct ; such order shall not affect the rights of any lona fide holder of stock who has acquired the same after its loss by the rightful owner thereof and prior to the expira- tion of sixty days from the date of the filing of such order as aforesaid in the office of the secretary of state.^ Sec. 497, Same— Proceedings to Compel Issuance of new Certificate — Order to show Cause. — Whenever any cor- poration incorporated under the laws of this state shall have refused to issue a new certificate of stock in the place of one theretofore issued by it, but which, it is alleged, has been lost or destroyed, the owner of such lost or destroyed certificate, or his legaP representatives, may apply to the chancellor or any justice of the supreme court for an order requiring such corporation to show cause why it should not be required to issue a new certificate of stock in the place of the one so lost or destroyed ; such application shall be by petition, duly verified by the owner, or his legal representatives, in which 1 N. J. L. 1882, p. 205, § 2. OEDEK TO SHOW CAUSE — EETURN. 743 shall be stated the name of corporation, the number and date of the certificate, if known, the number of shares of stock named therein, and to whom issued, and as particular a state- ment of the circumstances attending such loss or destruction as such petitioner shall be able to give ; upon presentation of such petition the said chancellor or justice shall make an order requiring the said corporation to show cause, at a time and place therein mentiojied, why.it should not be required to issue a new certificate of stock in the place of the one de- scribed in the said petition ; a copy of the said petition and of the said order shall be served upon the president or other head of such corporation, or upon the cashier or secretary or treasurer thereof, personally, at least ten days before the time designated in said order for showing cause. ^ Sec. 498. Same— Proceedings on Return of Order. — At the time and place specified in said order (provided for in section three),^ and upon proof of the due service thereof, the said chancellor or justice shall proceed in a summary manner, and in such mode as he may deem advisable, to inquire into the truth of the facts stated in the said peti- tion, and shall hear such proofs and allegations as may be offered by or in behalf of the petitioner, or by or in behalf of the said corporation, relative to the subject-matter of such inquiry ; and if, upon such inquiry, the chancellor or justice shall be satisfied that such petitioner is the lawful owner of the number of shares of the capital stock, or any part thereof, described in the said petition, and that the certificate therefor has been lost or destroyed, and cannot, after due diligence, be found, and no sufficient cause has been assigned why a new certificate should not be issued in place thereof, said chan- cellor or justice shall make an order requiring the said cor- poration, within such time as shall be therein designated, to issue and deliver to such petitioner a new certificate for the number of shares of the capital stock of the said corporation which shall be specified in such order as owned by such peti- tioner, and the certificate for which shall have been lost or destroyed ; in making such order the said chancellor or jus- 1 N. J. L. 1882, p. 207, § 3. ^ Supra, § 497. 744 ASSESSMENT OF STOCK BY DIRECTORS. tice shall direct that the said petitioner deposit such security^ or file such bond, in such form and with such sureties as to the chancellor or justice shall appear sufficient to indemnify any person, other than the petitioner, who shall thereafter appear to be the lawful owner of such certificate stated to be lost or stolen, and to indemnify the said corporation against all loss or damage which it shall sustain by reason of claims made against it by other persons upon account of such lost, stolen or destroyed certificate ; and the chancellor or justice may also direct the publication of such notice, either pre- ceding or succeeding the making of such final order, as he shall deem proper ; any person or persons who shall there- after claim any rights under such certificate, so alleged tO' have been lost or destroyed, shall have recourse to the said indemnity, and the said corporation shall be discharged of and from all liability to such person or persons, by reason of compliance of the order aforesaid ; obedience to such order may be enforced by said chancellor or justice by attachment against the officer or officers of such corporation, upon proof of his or their refusal to comply with the same.^ Sec. 499. Mining Company — Assessment of Stock — May be made by Directors when.— Whenever the cer- tificate provided for in section ten ^ of the act to which this is a supplement shall contain a provision (which is hereby authorized to be inserted therein in reference to any company conducting mining operations as a part of its business, that may be formed under the act to which this is a supplement), that the board of directors shall have full power to levy assessments on general stockholders until the stock of such stockholders shall be fully paid up ; that then and in every such case no action of the stockholders of such company shall be necessary in order to impose, levy and collect such assess- ments.** Sec. 500. Stock issued for Property Purchased— Guar- anteed Dividends. — Any stock issued for property pur- chased under section fifty-five, of the act to which this ^ 1 N. J. L. 1882, p. 208, § 4. » N. J. L. 1882, p. 25 - * See ante, § 431. * See ante, § 385. STOCK ¥OK PROPERTY GUARANTEED DIVIDENDS. 745 is a supplement may, by a vote of tlie board of directors, whenever the certificate of incorporation shall authorize the exercise of such a power, contain a provision guaranteeing a minimum yearly dividend payable yearly, half-yearly or quarter-yearly, but only out of the actual profits of the business of the company ; provided, that such provision shall not contain a guarantee of any larger dividend than is authorized to be paid on preferred stock of such company ; such guaranteed dividend to be paid before any dividend paid on the general stock of said company not containing an}' such provision ; the holder of such guaranteed stock shall be entitled to participate equally with the other holders of gen- eral stock in the profits arising out of the business of the company, and receive full dividends whenever the annual dividend or the sum of dividends in any year, upon the entire capital stock of said company, shall exceed the div- idend named in such guarantee ; the holders of such guar- anteed stock shall have all the rights of holders of the gen- eral stock of such company, including the right to vote and receive dividends thereon, and such guaranteed stock may be converted into an equal amount of the preferred stock of the company issuing the same, carrying no larger dividend ; and the directors of any company, for the purpose of rd'tiring the guaranteed stock of such company, may issue and exchange therefor an equal amount of its preferred stock, carrying no larger dividend than that guaranteed ; provided, that the amount of preferred stock so issued shall at no time exceed two-thirds of the entire capital of the company issuing the same ; and provided further, that the preferred stock of issued shall be entitled to dividends on a par with preferred stock before issued only with the assent of the holders of pre- ferred stock then outstanding, or in case it shall have been so provided in the original certificate of incorporation, or in the certificates for preferred stock outstanding.^ 8ec. 501. Incorporation of Company — Where Incor- porator is dead, another may be appointed. — Where one or more of the incorporators of any corporation created by or IN. J. L. 1889,.p. 415, §2. 746 MUTUAL ASSOCIATIONS — CAPITAL STOCK. under any general or special act shall have died before the corporation shall have been organized pursuant to law, the survivors or survivor may, in writing, designate other per- sons who may take the place and act instead of those de- ceased in the organization ; and the organization so effected by their aid shall be as effectual in law as if the organization had been effected by all the incorporators. ^ Sec. 502. Mutual Associations— Creation of Capital Stock by. — It is provided by the supplementary act of 1886,^ that it shall be lawful for the members of any mutual asso- <5iation or corporation heretofore or hereafter incorporated or organized under or by any law of this state, to provide for and create a capital stock of such association or corpora,tion, upon the consent, in writing, of all the members of such association or corporation, and to provide for the payment of such stock, and to fix and prescribe the rights and privileges of the stockholders therein. Sec. 503. Bights of Corporations holding Stock of other Corporations. — It shall be lawful for any corporation of this state, or of any other state doing business in this state, and authorized by law to own and hold shares of stock and bonds of corporations of other states, to own and hold and dispose thereof in the same manner, and with all the rights, powers and privileges of individual owners of shares of the capital stock and bonds or other evidences of indebtedness of •corporations of this state.^ By a subsequent act of the same year it is provided that it shall and may be lawful for any company heretofore or here- after organized under the provisions of an act entitled " An act concerning corporations," approved April seventh, one thousand eight hundred and seventy-five, and the acts supple- menting an(4 amending the same, for the purposes of the improvement and sale of land, or the building, operation and maintenance of hotels and the carrying on the business of an inn-keeper, or of the transportation of goods, merchandise or passengers upon land or water, to purchase and hold stock in 1 N. J. L. 1877, p. 137. s j^. j_ j^ ^ggg^ p. 335. " IS. J. L. 1886, p. 186, § 1. HOLDING STOCK IN OTHER COMPAIOES. 747 the capital of any one or more corporations formed under ^aid acts for either of the said purposes, and issue its own stocTj as for property purchased therefor ; provided, that said corporations shall have their principal office in, or be carrying on business, in whole or in part, in the same county ; and further provided, that the said business of transportation carried on by said transportation company may be incidental or necessary to the furnishing of proper facilities of travel to and from the lands or hotel of said other company or com- panies to the nearest points of established railroad transpor- tation.i I N. J. L. 1888, p. 445, § 1. CHAPTEE XXVIIL WEST VIRGINIA CORPORATIONS— OF CORPORA- TIONS GENERALLY. GENERAL POWBES — EESTEICTIONS ON— LAYING OUT OF TOWNS — ENTERING ON LANDS — CONDEMNATION PEOCEED- INGS — DISSOLUTION OF COKPOEATION — ACTION AND PRO- CESSES AGAINST COEPOEATION — ADDITIONAL POWEK — USURIOUS CONTEACTS. Sec. 504. General powers of corporations. Sec. 505. Same — Restrictions on. Sec. 506. Same — Cannot purchase real estate to resell. Sec. 507. Same — Certain corporations may lay out towns. Sec. 508. When corporations may enter upon lands. Sec. 509. Same — How much land corporations may acquire. Sec. 510. Condemnation of land — Proceedings to take without the owner's consent. Sec. 511. Same — Notice of application for such appointment. Sec. 512. Same — Company to provide wagon ways. Sec. 513. Company not to occupy streets in a town without its assent. Sec. 514. Dissolution of corporation — Disposition of its property. Sec. 515. Actions and process against a corporation. Sec. 516. Same — Service of attachments. Sec. 517. Same— Process may be served on depot or station agent. Sec. 518. Additional powers of corporations. Sec. 519. Usurious contracts of a corporation. Sec. .520. Existing corporations retain their privileges and liabilities. Sec. 504. General Powers of Corporations. — Every cor- poration, as such, shall have succession by its corporate name for the time limited in its charter or by-law ; and, if no time be limited, perpetually. It shall have a common seal, and may renew or alter the same at pleasure. It may sue and be sued, plead and be impleaded ; contract and be contracted EESTEICTION ON POWERS. 749 with by simple contract or specialty ; purchase, hold, use and grant estate, real and personal ; appoint officers and agents, prescribe their powers, duties and liabilities ; take bond and security from any of them, and fix and pay their compensa- tion ; and make ordinances, by-laws and regulations for the government of its council, board, officers and agents, and the management and regulation of its property and business.'^ Sec. 505. Same — Restrictions on. — The powers men- tioned in the preceding section or otherwise granted to any corporation, shall be limited by the purposes for which it is incorporated, and no corporation shall engage iu transactions or business not proper for those purposes ; nor shall corpo- rate powers be exercised in violation of any law of the state.^ Sec. 506. Same— Cannot Purchase Real Estate to Re- sell. — Unless specially authorized, no corporation shall pur- chase real estate in order to sell the same for profit, or hold more real estate than is proper for the purposes for which it is incorporated, subscribe for or purchase the stock, bonds or securities of any joint stock company, or become surety or guarantor for the debt or default of such company.^ Sec. 507. Same — Certain Corporations may Lay out Towns. — Nevertheless, a mining, manufacturing, oil, salt, or internal improvement company may lay out a town not to include more than six hundred and forty acres, at or near Their works, and sell lots therein ; and any corporation may take real estate, stock, bonds and securities, in payment, in whole or in part, of any debt bona fide owing to it, or as a security therefor, or may purchase the same if deemed neces- sary to secure or obtain payment of any such debt, in whole or in part, and may manage, use and dispose of what has been so taken or purchased, as a natural person might do ; and any corporation may compromise or purchase its own debt, and establish and manage a sinking fund for that purpose, and any manufacturing company may, with the assent of the holders of two-thirds of its stock, had by a vote at a stockholders' meeting, subscribe for or purchase the stock, bonds or secu- 1 W. Va. Code 1887, c. 52,§ 1. » W. Va. Code 1887, c. 52, § 3. 2 W. Va. Code 1S87, c. 52, § 2. 750 ENTERING UPON LANDS. ritdes of any corporation formed for the purpose of manufac- turing or producing any articles or materials used in the business of such joint stock company, or dealing in any arti- cles or materials manufactured or produced by such joint stock companj^ or constructing a railroad, or other work of internal improvement, through or into the county in which the prin- cipal place of business of such joint stock company may be, or operating a railroad or other work of internal improvement so constructed, and may, with the like assent, become surety for or guarantee the debt of such corporation, or in any manner aid it in carrying on its business.-' Sec. 508. When Corporations may Enter upon Lands^ — Any company incorporated for a work of internal improve- ment may, by its officers, servants, or agents, enter upon lands for the purpose of examining the same, and surveying- and laying out such as may seem fit to any officer or agent au- thorized by it, provided no injury be done to the owner or pos- sessor of the land. But no company shall, under the authority of this section, throw open fences or enclosures on any land, or construct its work through the same, or in any way injure the property or the owner or possessor, without his consent, or until the same may have been legally appropriated to the use of the company, as is provided by the laws of the state of West Virginia relating to the condemnation and appropri- ation of private property for the use of companies incorpo- rated for internal improvements. But no company under this act shall invade the dwelling house of any person, or any space within sixty feet thereof, without the consent of the- owner, unless it be absolutely necessary for the construction of such road by reason of its passing through a narrow gorge, defile or narrow space : Provided, that this act shall not apply to amr city or incorporated town ; and provided fur- ther, that any company which may have heretofore actually commenced the location of its road, may invade any space twenty feet from the dwelling house of any person, or invade a nearer space, or such house, when by the reason of the loca- tion of such road in or through a narrow gorge, defile or nar- 1 W. Va. Code 1887, c. 52, § 4. CONDEMNATION OF LANDS — PROCEEDINGS. 751 row space, or along or near to any stream, river or bluff, such invasion is necessary for the construction of such road.^ Sec. 509. Same — How much Land Corporations may Acquire. — The land acquired by any company incorporated for a work of internal improvement along its line generally shall not exceed one hundred feet in width, except in deep cuts and fillings, and then only so much more shall be ac- quired as may be reasonably necessary therefor ; the land which it may acquire for buildings or for an abutment along its line generally shall not exceed three acres in any one parcel ; and the land which it may acquire for buildings or other purposes of the company at the principal termini of its. work, or at any place or places within five miles of such ter- mini, shall not exceed fifteen acres in any one parcel ; but in the case of a railroad company, an amount of land not ex- ceeding forty acres in any one parcel may be acquired for its main depots, machine shops and other necessary purposes connected with the business of said company.^ Sec 510. Condemnation of Land — Proceedings to take without the Owner's Consent. — If the president and direc- tors of a company, incorporated for a work of internal im- provement, cannot agree on the terms of purchase with those entitled to lands wanted for the purpose of the company, five disinterested freeholders shall be appointed by the circuit court of the county in which such land, or the greater part thereof, shall lie, (three of whom may act) for the purpose of ascertaining a just compensation for such land. Lands owned by one internal improvement company, but not neces- sary for the enjoyment of its franchise, may be taken for the purposes of another internal improvement company, in the same manner as land owned by others ; but where such lands are claimed to be necessary to the enjoyment of such fran- chise, the court appointing such freeholders may, before pro- ceeding further, determine upon a report of such freeholders, or otherwise, whether such necessity exists.* Sec. 511. Same — Notice of Application for such Ap- 1 W. Va. Code 1887, c. 62, § 5. » W. Va. Code 1887, c. 52, § 7. " W. Va. Code 1887, c. 52, § 6. 752 ACTIONS AGAINST CO'S — SEEVICE OF PROCESS. pomtmebt. — When it is intended to apply for such appoint- ment, notice shall be given and commissioners appointed, and the proceedings thereon shall be the like in all respects as are prescribed by chapter forty-two of this act.^ Sec, 513. Same— Company to Prpvide Wagon Ways. — For every person, through whose land the road or canal of a company passes, it shall provide wagon ways across the road or canal from one part of the said land to the other, and keep such ways in good repair.^ Sec. 513. Company not to Occupy Streets in a Town ■without its Assent. — No company shall occupy, with its works, the streets of the inhabited part of any city, town or village, until the corporate authority thereof shall have . assented to such occupation, unless such assent be dispensed with by special provision of law.^ Sec 514. Dissolution of Corporation— Disposition of its Property. — When any corporation shall expire, or be dis- solved, or its corporate rights and privileges shall have ceased, it may wind up its affairs in the manner prescribed by section fifty-nine of chapter fifty-three of this act.* Sec. 515. Actions and Process against a Corporation. — In any action brought against a corporation, if it be in the circuit court, process shall be issued as provided in chapter one hundred and twenty-four of this act ; or if the action be brought before a justice, process shall be issued as provided in chapter fifty of this act.^ Sec. 516. Same— Service of Attachments,— Attachments may be served upon a company or corporation, as garnishee, in the manner prescribed by the preceding section, and in chapter one hundred and six of this act.® Sec. 517.^ Same— Process may be Served on Depot or Station Agent.— Provided, that when any suit is brought against a railroad company under the two preceding sections, the agent on whom process may be served shall be construed 1 W. Va. Code 1887, c. 52, § 8. * W. Va. Code 1887, c. 52, § 17. 2 W. Va. Code 1887, c. 52, § 9. « W. Va. Code 1887, c. 52, § 18. 3 W. Va. Code 1887, c. 52, § 10. » W. Va. Code 1887, c. 52, § 19. ADDITIONAL POWEES. 753 ■fo include a depot or station agent in the actual employment of the company, residing in the county or township wherein the action is brought.^ Sec. 518. Additional Powers of Corporations. — In addi- tion to the powers enumerated in this chapter, and those expressly or by necessary implication given by any other law every corporation shall have such powers, and such only, as are necessary or proper to the exercise of the powers so enu- merated or given.^ Sec. 519. Usurious Contracts of a Corporation. — No corporation shall interpose the defense of usury in any suit or proceeding at law or in chancery ; nor shall any bond, note, debt or contract, of a corporation be set aside, impaired, or adjudged invalid, by reason of anything contained in the laws prohibiting usury .^ Sec. 520. Existing Corporations Eetain their Privi- leges and Liabilities. — Corporations now existing shall con- tinue to exercise and enjoy their powers and privileges according to their respective charters and the laws now in force, and shall continue subject to all the liabilities to which they are now subject, except so far as such powers, privileges and liabilities, are modified or controlled by this act.* » W. Va. Code 1887, c. 52, § 20. » W. Va. Code 1887, u. 52, § 22. 2 W. Va. Code 1887, c. 52, § 21. * W. Va. Code 1887, c. 52, § 23. 48 CHAPTER XXIX. WEST VIRGINIA CORPORATIONS— OF JOINT STOCK COMPANIES. INCOEPOEATION — ORGANIZATION — DISSOLUTION BY SUSPEN- SION OF BUSINESS — LEGISLATURE MAY ALTER OB REPEAL. CHARTER — CHANGE OP CORPORATE NAME — CAPITAL STOCK — SUBSCRIPTION TO — STOCKHOLDERS — STOCK PERSONAL ESTATE — SALE AND TRANSFER OF STOCK — FAILURE TO PAY SUBSCRIPTIONS — SALE OF DELINQUENT STOCK — GIV- ING SECURITY — CERTIFICATES OF STOCK^DIYIDBNDS — MEETING OF STOCKHOLDERS — VOTING BY PROXY — ANNUAL, REPORT — BOARD OP DIRECTORS, MEETING OP — OFFICERS AND AGENTS — BOOKS OP ACCOUNTS — BY-LAWS — ^DISSOLU- TION — RECEIVER. Sec. 521. Definition. Sec. 522. Joint stock companies — Not to be incorporated under special charter. Sec. 523. Former charter — To be deemed extinct when. Sec. 524. Organization of company — Within what time must be effected. Sec. 525. Dissolution of corporation by suspension of business. Sec. 526. Right of legislature to alter or repeal charters. Sec. 527. What companies are subject to this chapter. Sec. 528. Corporate name. Skc. 529. Same — Change of corporate name. Sec. 530. Effect of change of name. Sec. 531. The capital stock. Sec. 532. Same— Preferred stock. Sec. 533. Number of stockholders. Sec. 534. Stock owned by the corporation. Sec. 535. Who deemed the owner of stock. Sec. 536. Stock deemed personal estate. COKPOBATIONS — JOINT STOCK CO'S INCLUDED. 755- Sec. 537. Transfer book. Sec. 538. Transfer of stock. Skc. 539. Subscription to the capital stock. Sec. 540. Sale of stock— To be sold at less than par to increase capital stock.. Sec. 541. How subscriptions to be paid. Skc. 542. When stock to be regarded as taken. Sec. 543. Apportionment of stock. Sec. 544. Failure to pay subscriptions. Sec. 545. When company may sell delinquent stock. Sec. 546. When corporations may recover from delinquent stockholders. Sec. 547. Security for unpaid installment of stock. Sec. 548. Insufficient or doubtful security. Sec. 549. Failure to give satisfactory security. Sec. 550. Failure to pay installments. Sec. 551. Certificates of stock. Sec. 552. Same — To be surrendered on transfer of stock. Sec. 553. Same — Sale, etc., of stock with delivery of to purchaser. Sec. 554. Same— Lost certificate. Sec. 555. Dividends on stock. Sec. 556. Dividend declared out of the capital. Sec. 557. Meeting of the stockholders. Sec. 558. Same — Quorum. Sec. 559. Same — List of stockholders — To be hung up in principal office^ Sec. 560. Same — Mode of voting. Sec. 561. Same — Voting proxies. Sec. 562. Annual report of directors. Sec. 563. Books, papers, etc. Sec. 564. Board of directors. Sec. 565. Same — President. Sec. 566. Same— Meeting of the board. Sbc. 567. Same — Kecord of proceedings. Sec. 568. Officers and agents. Sec. 569. Books of account. Sec. 570. By-laws. Sec. 571. Dissolution — Voluntary dissolution. Sec. 572. Same — Proceedings in equity to dissolve a corporation. Sec. 573. Receiver. Sec. 574. Effect of dissolution or expiration of a corporation. Sec. 575. Examination or report required by the legislature. Sec. 576. Quantity of land which a corporation may hold. Sec. 577. Preservation of the peace, etc. Sec. 621. Definitions.— The words "joint stock com- pany " include every corporation having a joint stock or capital divided into shares owned by the stockholders respec^ tively.i » W. Va. Code 1887, c. 53, § 1. 756 IKCORPOEATION UNDER SPECIAL CHAETBE. When the word " by-law " is used in this chapter, it is to Be understood as if immediately followed by the words -*' adopted by the stockholders in general meeting assembled."^ Sec. 522. Joint Stock Companies not to be Incorporated under Special Charter.— No corporation shall hereafter be created by special charter ; and no act shall be passed grant- ing special privileges to any joint stock company heretofore or hereafter incorporated under the provisions of chapter iifty-four of this code, or any other general law of this state, and no joint stock company shall be authorized to engage in any business other than that which is proper under its •charter; except, that a mining, manufacturing, oil, salt or internal improvement company, may lay out a town not to include more than six hundred and forty acres, at or near -their works, and sell lots therein ; and any corporation may i;ake real estate, stocks, bonds and securities, in payment, in whole or in part, for any debt bona fide owing to it, or as a security therefor, or may purchase the same if -deemed necessary to secure or obtain payment of any such debt, in whole or in part, and may manage, use and dispose of, what has been so taken or purchased, as a natural person might do ; and any corporation may compromise or purchase its own debt, and establish and manage a sinking fund for that purpose, and any manufacturing company may, with the assent of the holders of two-thirds of its stock, had by a vote at a stockholders' meeting, subscribe for or purchase the stock, bonds or securities, of any corporation formed for the purpose of manufacturing or producing any articles or ma- i;erial used in the business of such joint stock company, or ■dealing in any article's or material manufactured or produced ■by such joint stock company, or constructing a railroad or other work of internal improvement, through or into the county in which the principal place of business of such joint istock company may be, or operating a railroad or other work "Of internal improvement so constructed, and may, with the like assent, become surety for or guarantee the debts of such cor- » W. Va. Code 1887, c. 53, § 2. ORGANIZATION OF COMPANY. 757 poration, or in any manner aid it in carrying on its business.^ Sec. 533. Formei" Charters— To be Deemed extinct when — All existing charters or grants of special or exclusive privileges under which organizations shall not have taken place, or which shall not have been in operation within two years from the twenty-second day of August, one thousand eight hundred and seventy-two, shall have no validity or effect whatever. Provided that nothing herein shall prevent the execution of any hona fide contract heretofore lawfully made in relation to any existing charter or grant in this state .^ All rights, powers and privileges, heretofore granted by the general assembly of Virginia, or by the legislature of this state, to any joint stock company, which are not rendered invalid and of no effect by the preceding section, are hereby preserved to it.^ Sec. 534. Organization of Company— Within what Time must be Effected. — Where a certificate of incorpora- tion has been or shall hereafter be issued for a joint stock company under a general law, such company must be organ- ized and commence its proper corporate business within one year after the date of such certificate ; otherwise the certifi- cate shall be of no effect.* Sec. 535. Dissolution of Corporation by Suspension of Business. — If a joint stock company, whether organized under special charter or general law, suspend its proper cor- porate business at any time for two years continuously, its corporate rights and privileges shall cease.^ Sec. 536. Charters— Right of legislature to. alter or repeal. — Where the legislature has the right to alter or repeal the charter or certificate of incorporation heretofore granted to any joint stock company, or to alter or repeal any law relat- ing to such company, nothing contained in this chapter shall be construed to surrender or impair such right. And the 1 W. Va. Code 1887, c. 53, § 3. * W. Va. Code 1887, c. 53, § 6. 2 W. Ta. Code 1887, c. 58, § 4. ^ W. Va. Code 1887, c. 53, § 7. » W. Va. Code 1887, c. 53, § 5. 758 COEPOEATE KAME— CHANGE OF. right is hereby reserved to the legislature to alter an)-- charter or certificate of incorporation hereafter granted to a joint stock company, and to alter or repeal any law applicable to such company. But in no case shall such alteration or repeal affect the right of the creditors of the company to have its assets applied to the discharge of its liabilities, or of its stock- holders to have the surplus, if any, which may remain after discharging its liabilities and the expenses of winding up its affairs, distributed among themselves in proportion to their respective interests.^ Sec. 527. What Companies are Subject to this Chapter. — Every joint stock company heretofore organized, and which has commenced its proper corporate business, under special charter or general law, shall remain subject to the laws now in force applicable thereto, unless it accepts the provisions of this chapter, or shall be declared subject thereto by act of the legislature.^ Every joint stock company which shall be hereafter organ- ized or commence its proper corporate business, or which shall accept the provisions of this chapter, or be declared subject thereto by act of the legislature, shall, so far as it is not otherwise expressly provided, have the rights, powers and privileges, and be subject to the regulations, restrictions and liabilities specified in this and the preceding chapter .^ Sec. 628. Corporate Name. — No joint stock company rshall adopt the same name which is being used at the time by another corporation of this state.* Sec. 529. Same— Change of Corporate Name. — If the ■stockholders of a joint stock company desire to change the name thereof, and pass, in general meeting, a resolution to that effect, stating the name by which it is intended the corpo- ration shaj,). be thereafter known, and cause such resolution to be certified under its common seal and the signature of its president to the secretary of state, the secretary shall issue, under his hand and the great seal of the state, a certificate reciting the resolution and declaring that the corporation is 1 W. Va. Code 1887, c. 53, § 8. » W. Va. Code 1887, c. 53, § 10. 2 W. Va. Code 1887, c. 53, § 9. * W. Va. Code 1887, c. 53, § 11. CAPITAL STOCK — PREFERRED STOCK. 759 to be thereafter known by the new name so adopted ; and such certificate siiall be evidence of the change of name therein specified. Notice of every such change of name shall be published by such corporation in some newspaper of gen- eral circulation, in the county where the principal office of such corporation is, once a week for four successive weeks immediately thereafter. ^ The seventeenth, eighteenth, nineteenth and twentieth sections ^ of chapter fifty-four of this code, shall be applicable to such certificates of change of name.^ Sec. 530. Effect of change of Name. — No contract, right or liabilitj^, previously existing or inchoate, or suit, motion or proceeding then pending, shall be affected by such change of name.* Sec. 531. The Capital Stock. — The capital stock shall be divided into shares of such amount each as may be prescribed bj' the charter of incorporation ; but every share shall be of "the same amount.^ Sec, 532. Same— Preferred Stock.— The stockholders in general meeting may, by resolution or by-law, provide for or authorize the issuing of preferred stock, on such terms and conditions, and with such regulations respecting the prefer- ence to be given to such stock over the other stock in relation to future dividends, or otherwise, as they may deem proper. Provided, that the maximum capital of the corporation shall not be exceeded, and that notice be first published at least once a week for four weeks successively, in some newspaper of general circulation in the county wherein the principal office or place of business of the corporation is situated, of the intention to offer such resolution or by-law.^ Sec, 533. Number of Stockholders.— There shall not be less than five stockholders. If the number be at any time reduced below five andso remain forsix months continuously the corporation shall be dissolved. 1 W. Va. Code 1887, c. 53, § 12. « ^y. ya. Code 1887, c. 53, § 15. 2 See post, §§ 594, 595, 596, 597. « W. Va. Code 1887, c. 53, § 16. 8 W. Va. Code 1887, c. 53, § 13. ' W. Va. Code 1887, c. 53, § 17. ■* W. Va. Code 1887, c. 53, § 14. 760 STOCK PERSONAL PEOPERTY. Sec. 534. Stock Owned by the Corporation.— If the cor- poration acquire shares of its own stock, it inuy either extin- guish or sell the same. If extinguished, it shall operate to that extent as a reduction of the amount of its capital stock. No vote shall be given on any stock while owned by the cor- poration. ^ Sec 535. Who Deemed the Owner of Stock. — The person in whose name shares of stock stand on the books of the cor- poration shall be deemed the owner thereof, so far as the cor- poration is concerned. Sec. 536. Stock Deemed Personal Estate.— The shares shall be deemed personal estate, and as such shall pass to the legal representative or transferee of the stockholder, and be subject to legal process.^ Sec. 537. Transfer-Book. — A transfer-book shall be kept by the corporation in which the shares shall be assigned under such regulations, if there be any, as may have been prescribed by the by-laws.* Sec. 538. Transfer of Stock. — No share shall be trans- ferred without the consent of the board of directors, until the same is fully paid up, or security given to the satisfaction of the board for the residue i-emaining unpaid. And where bond and security have been given to the corporation for any sum remaining unpaid upon stock, no transfer shall affect the validity of such bonds and security.^ Sec. 539. Subscriptions to the Capital Stock, etc.^ Before a corporation is organized, shares may be disposed of as prescribed by the sixteenth section* of chapter fifty-four of this code, or by the charter. After it is organized, the dis- posal of additional shares to increase the capital stock shall be subject to the order and direction of the board of directors for the tiifle being, so that the maximum capital be not exceeded.' Sec. 540. Sale of Stock— Not to be sold at less than par » W. Va. Code 1887, c. 5.S, § 18. ^ -yv. Va. Code 1887, c. 5.S, § 22. 2 W. Va. Code 1887, c. 53, § 19. « Seei^osi, § 593. 8 W. Va. Code 1887, c. 55, § 20. ' W. Va. Code 1887, c. 53, § 23. * W. Va. Code 1887, c. 53, § 21, SALE OF STOCK. 761 to Increase Capital Stock. — In no case shall stock be sold or disposed of at less than par in order to increase the capital of any such corporation beyond the maximum fixed by its charter. But nothing herein contained shall be so construed as to prevent any mining corporation, subject to the pro- visions of this chapter, from issuing stock or bonds and nego- tiating the sale of the same in payment of real and personal estate for the use of such corporation, and for its other cor- porate purposes and business, at such price and upon such terms and conditions as may be agreed upon by the owners,, directors or stockholders, of such corporation. And any sub- scriber to the capital stock of any such mining corporation may pay for such stock by the transfer and conveyance to- such corporation of real or personal property, or both, neces- sary for the uses and piirposes of the corporation, upon such terms as may be mutually agreed upon.^ Sec. 541. How Subscriptions to be Paid. — At least ten per cent, of the par value of each share shall be paid at the time of subscription, and the residue as required by the board of directors or the commissioners having control of the sub- scription.^ Sec. 542. When Stock to be Regarded as Taken,— No stock shall be regarded as taken, or the person subscribing- therefor considered entitled to the same, until the first instal- ment is paid thereon. 3 Sec. 543. Apportionment of Stock. — If more than the amount necessary to make up the maximum capital, or the amount of capital to be disposed of, be at any time sub- scribed, the subscriptions shall be reduced to the proper amount by deducting the excess from the largest subscrip- tions, in such manner that no subscription shall be reduced vphile any one remains larger.* Sec, 544. Failure to Pay Subscriptions.— If any person, who has received a sum of money on a subsciiption to the capital stock of a corporation, fail to account for and pay » W. Va. Code 1887, c. 53, § 24. « W. Va. Code 1887, c. 53, § 26. 2 W. Va. Code 1887, c. 53, § 25. * W. Va. Code 1887, c. 53, § 27. 762 SALE OP DELINQUENT STOCK. over the same as the board of directors may require, or if any stockholder fail to pay any instalment upon his shares when required by the board, the corporation may recover from him the principal sum due, with interest thereon at the rate of ten per cent, per annum, by motion on ten days' notice, or by action before any justice or court having jurisdiction. i Sec. 545. When Company may sell Delinquent Stock.— Or, in the case of a stockholder failing to pay any instalment upon his shares when required by the board of directors, the said shares may, by order of the board, after four weeks' -notice in a newspaper of general circulation in the county, wherein the principal ofBce or place of business of such cor- poration is situated, be sold at public auction for cash, and he transferred to the purchaser by such person as the board shall appoint for the purpose. In such case there shall be paid out of the proceeds of the sale the expenses of advertis- ing and selling, and the whole residue remaining unpaid upon said stock ; and the surplus, if any, shall be paid to the delin- quent stockholder.^ Sec. 54:6. When Corporations may Recover from Delin- quent Stockholder.— If there be no sale for want of bidders, or if the sale do not produce enough to pay the expenses and the whole residue remaining unpaid on the said stock, the corporation may recover from such stockholder whatever may remain unpaid, with interest at the rate of ten per cent, per annum from the time it was due until payment, by action or motion as aforesaid.^ Sec. 547. Security for Unpaid Instalments of Stock.— A corporation, the stock of which is not fully paid up, may, by by-law, require each stockholder to give security to the satisfaction of its board of directors for the payment, at such times and jfi such instalments as the board may direct, of the residue remaining unpaid on his stock. In such case the security may be given by bond, with one or more sureties, or by pledge of other stocks or securities, or by deed of trust or 1 W. Va. Code 1887, c. 53, § 28. 8 w. Va. Code 1887, c. 53, § 30. 2 W. Va. Code 1887, c. 53, § 29. SECURITY — FAILTTRE TO PAT INSTALMENT. 763 ■mortgage on real estate, or in any other manner satisfactory to the board and not prohibited by such by-law.^ Sec. 548. Insufficient or Doubtful Security.— When security is taken from stockholders for the unpaid residue of their stock, according to the preceding section, tlie board of directors shall, from time to time, examine the said securities to ascertain the sufficiency thereof. And if, in any case, they deem the security insufficient or doubtful, they shall require other security in lieu thereof ; and so, from time to time thereafter, whenever they find the security insufficient ■or doubtful.2 Sec. 549. Failure to Give Satisfactory Security.— If any stockholder being thereto required, according to either of the two preceding sections, fail to give security satisfactory to the board of directors for the unpaid residue of his stock, the corporation may recover from him, by motion on ten days' notice, or by action before any justice or court having juris- diction, the whole unpaid residue of the stock, with interest thereon at the rate of ten per cent, per annum from the time of such failure, until payment ; or the board of directors at their option (having first given not less than two weeks' notice to the stockholder of their intention so to do), m&,y declare the stock, in regard to which such failure occurred, to be forfeited to the corporation.® Sec. 550. Failure to Pay Instalment. — If any stock- liolder, having given security as aforesaid, fail to pay the un- paid residue of his stock or any instalment thereof, when thereto required by the board of directors, the corporation may recover the amount in arrear, with interest thereon at the rate of ten per cent, per annum from the time of such failure until payment, from the person liable on such security, or any one or more of them, by motion or action as aforesaid ; or by the sale or collection of the stocks or securities pledged, or enforcement of the deed of trust or mortgage, or other securities, given as aforesaid ; or in the manner specified in the twenty-ninth and thirtieth sections of this chapter.* And 1 W. Va. Code 1887, c. 53, § 31. « W. Va. Code 1887, c. 53, § 33. 2 W. Va. Code 1887, c. 53, § 32. « Supra, §§ 545, 546. 764 CERTIFICATE OP STOCK — SFREBNDEK. if it proceed in any of the modes above mentioned, it shall not be thereby precluded from resorting to the others for the recovery of so much as may remain unpaid.^ Sec. 551. Certificates of Stock.— The board of directors may cause to be issued, if demanded, to any person appearing on the books of the corporation to be the owner of any shares of its stock a certificate therefor under the corporate seal, to be signed by the president and such other officer, if any, as the board may direct ; which certificate shall show the amount paid on each share.^ Sec. 552. Same— To toe Surrendered on Transfer of Stock. — A stockholder, to whom such certificate has been issued, shall not be allowed to transfer the shares therein mentioned, or any part thereof, without delivering up the said certificate to the corporation to be cancelled, unless the same be lost or destroyed, or sufficient cause be shown, to- the satisfaction of the board of directors, why it cannot be produced.^ Sec, 553. Same— Sale, etc., of Stock with Delivery of to Purchaser. — If any person, for valuable consideration, sell, pledge or otherwise dispose of, any shares belonging to him to •another, and deliver to him the certificate for such shares, with the power of attorney authorizing the transfer of the same on the books of the corporation, the title of the former shall vest in the latter so far as may be necessary to effect the sale, pledge or other disposal, of the said shares, not only as between the parties themselves, but also as against the cred- itors of, and subsequent purchaser from, the former, but sub- ject, nevertheless, to the provisions contained in the nine- teenth section * of this chapter.^ Sec. 554. Same— Lost Certificate. — When a person to vphom a cerMficate has been issued, alleges it to have been lost, he shall file in the ofhce of the corporation, first, an affidavit setting forth the time, place and circumstances of the loss, to the best of his knowledge and belief; second, 1 W. Va. Code 1887, c. 53, § 34. * See ante, § 5:!5. 2 W. Va. Code 1887, c. 53, § 35. ^ -yy. ya. Code 1887, c. 53, § 37. » W. Va. Code 1887, c. 53, § 36. DIVIDENDS ON STOCK. 765 proof of his having advertised the same in a newspaper of general circulation, published near the principal office of the corporation, once a week for four weeks ; and, third, a bond to the corporation, with one or more sufficient sureties, con- ditioned to indemnify the corporation and all persons against any loss in consequence of a new certificate being issued in lieu of the former. And thereupon the board of directors shall caused to be issued to him a new certificate, or duplicate of the certificate alleged to be lost.i Sec. 555. Dividends on Stock.— The board may, from time to time declare dividends of so much of the net profits «,s they deem it prudent to divide. If any stockholder be indebted to the corporation, his dividend, or so much thereof as is necessary, may be applied to the payment of the debt, if the same be then due and payable.^ Sec. 556. Dividend Declared out of the Capital. — If the board declare a dividend by which the capital of the corpo- ration shall be diminished, all the members present, who do not dissent therefrom and cause said dissent to be entered on the record of their proceedings, shall be jointly and severally liable to the creditors of the corporation for the amount the capital may have been so diminished ; and may be decreed against therefor on a bill in equity filed by any creditor ; and moreover, every stockholder who has received any such divi- dend shall be liable to the creditors for the amount of capital so received by him.^ Sec. 557. Meetings of the Stockholders. — An annual meeting of the stockholders of every corporation, subject to this chapter, shall be held at such time as may be prescribed by the by-laws, or, if there be no such by-law, then on the fourth Tuesday of January. A general meeting of the stock- holders may be called at any time by the board of directors, or by any number of the Stockholders holding together at least one-tenth of the capital. Notice of the annual or any other general meeting shall be given in such manner as the 1 W. Va. Code ]887, c. 53, § 38. ' W. Va. Code 1887, c. 53, § 40. 2 "W. Va. Code 1887, c. 53, § 39. 766 MEETING OF STOCKHOLDERS — QUOEUM. by-laws may direct, or, if there be no such by-law, by adver- tising the same once a week for two weeks at least in some newspaper of general circulation published near the principal office or place of business of the company.^ The annual meeting and other meetings of the stockholders, within this state, shall be held at such place as may be pre- scribed by the by-laws, or if there be no such by-law, then at the principal office or place of business of the corporation. Notice of the place of meeting shall be given in the manner prescribed by the forty-first section ^ of this chapter.^ Sec. 558. Same— Quorum. — The number of stockholders- or amount of stock necessary to constitute a quorum at a meet- ing of stockholders, and the mode of transacting business at such meetings, may be prescribed by the by-laws. If there be no such by-law the majority of the stock must be present, in person or by proxy, to constitute a meeting. But if a suf- ficient number do not attend at the time and place appointed, those who do attend may adjourn from time to time until a- meeting is regularly constituted. Every meeting of the stock- holders ma3' adjourn from time to time till its business is completed. Sec. 559. Same— List of Stockholders to be Hung up in Principal Office. — A list of stockholders, showing the number of shares and votes to which each is entitled, shall, for one month before every annual meeting, be hung up in the most public room at the principal office or place of business of th& corporation ; but the failure to do so shall not affect th& validity of the proceedings of such meeting.^ Sec. 560. Same — Mode of Voting, — In all elections for directors or managers of incorporated companies, whether in other respects governed by this chapter or not, every stock- holder shall^ave the right to vote in person or by proxy for the number of shares of stock owned by him for as many- persons as there are directors or managers to be elected, or to cumulate said shares and give one candidate as many votes- as the number of directors multiplied by the number of his 1 W. Va. Code 1887, c. 53, § 41. * W. Va. Code 1887, c. 53, § 42. 2 See first half of § 557. « W. Va. Code 1887, c. 53, § 43. » W. Va. Code 1887, c. 53, § 48. ANNUAL KEPOBT OF DIRECTOKS. 76T' shares of stock shall equal, or to distribute them on the same- principle among as many candidates as he shall think fit ;; and such directors or managers shall not be elected in any other manner. And on any other question to be determined at any meeting of stockholders, if a vote by stock be demanded upon such question by any stockholder, every stockholder may, in person or by proxy, give the following vote on what- ever stock he may hold in the same right, that is to say, one vote for every share of stock held in such company.^ Sec. 561, Same— Voting— Proxies.— No officer or direc- tor of a corporation shall vote as the proxy of a stockholder thereof.^ Sec. 562. Annual Report of Directors. — The board of directors shall make a report . to the stockholders, at the annual meeting, of the condition of the corporation. The report shall show the property and funds belonging to the corporation, and the estimated value thereof ; the debts due to it, distinguishing such as are believed to be good from those considered to be doubtful or hopeless ; the debts and liabilities of the corporation ; the amount of capital paid in ; and the estimated surplus or deficiency, as the case may be. It shall also state the amount of dividends declared, and the losses incurred, or profits accruing, during the preceding- year. The board shall furnish to each stockholder requiring^ it, a true copy of such report, together with a list of the stockholders and their places of residence.^ Sec. 563. Books, Papers, etc. — The property and funds, books, correspondence and papers of the corporation, in the possession or control of any officer or agent thereof, shall, at. all times, be subject to the inspection of the board, or a com- mittee thereof appointed for the purpose, or of any committee appointed for the purpose by a general meeting of the stock- holders. The minutes of the resolutions and proceedings of the board shall, for thirty days before the annual meeting of the stockholders, be open to the inspection of any stock, 1 W. Va. Code 1887, c. 53, § 44. « W. Va. Code 1887, e. 53, § 46. =" W. Va. Code 1887, c. 53, § 45. 768 BOARD OF DIRECTORS — PRESIDENT. holder. They shall be produced when required by the stock- holders at any general meeting.^ Sec, 564. Board of Dircetors. — For every corporation subject to this chapter there shall be a board of directors, who shall have powei" to do, or cause to be done, all things that are proper to be done by the corporation. The stockholders may in general meeting, by a by-law, prescribe tlie number of which the board shall consist : but unless a different number be so prescribed, thei-e shall be five directors. They may also, by a by-law, prescribe the qualifications of directors; but if it be not otherwise provided, every director must be a resident of this state and a stockholder. The directors shall be elected at the annual meeting of the stockholders, or as soon thereafter as practicable, and shall hold their office until their successors are elected and qualified. The stockholders in general meeting may remove any director and fill the vacancy ; but any vacancy not caused by such removal may be filled by the board. A majority of the board shall consti- tute a quorum, unless it be otherwise provided in the by- laws ; and if the number of the board be reduced at any time so as to interrupt the proper .and efficient management of the business of the corporation, a general meeting of the stock- holders may be called to elect new directors, or to take such order in the premises as they may deem proper.^ Sec. 565. Same— President. — As soon as may be, after their election, the board of directors shall choose one of their own body president of the corporation, who shall act as such till his successor is qualified, without ceasing, how- ever, to be a member of the board. During the absence of the president the board may appoint a president 'pro tempore, who, for the time, shall discharge the official duties of the president.8* Sec. 566. Same— Meetings of the Board.- The board shall hold meetings at such time as they see fit, or the pres- ident shall require. They may, by resolution, prescribe 1 W. Va. Code 1887, c. 53, § 47. » W. Va. Code 1887, c. 53, § 50. ^ W. Va. Code 1887, c. 53, § 49. BECOED OP PROCEEDINGS. 769 when and where their regular meetings shall be held, how special meetings shall be called, and what notice of theix meetings shall be given. ^ Sec. 567. Same— Record of Proceedings.— They shall keep a record of their proceedings, which shall be verified by the signature of the president or president pro tempore. No member of the board shall vote on a question in which he is interested otherwise than as a stockholder, except the election of a president, or be present at the board while the same is being considered ; but if his retiring from the board in such case reduce the number present below a quorum, the question may nevertheless be decided by those who remain. On any question the names of those voting each way shall be entered on the record of their proceedings, if any member at the time require it.^ Sec. 568. Officers and Agents.— The board of directors shall appoint such officers and agents of the corporation as they may deem proper, and prescribe their duties and com- pensation ; but there shall be no compensation for services rendered by the president or any director, unless it be allowed by the stockholders. The officers and agents so appointed shall hold their places during the pleasure of the board ; and if required by the board, or the by-laws, shall give bond, pay- able to the corporation, in such penalties and with such con- ditions and security as the board may approve.^ Sec. 569 Books of Accounts.— The board of directors shall cause regular and correct books of account to be kept, and to be settled and balanced once at least every six months.* Sec. 570. By-laws.— The board of directors, in the exer- cise of their powers, shall be subject to such by-laws and regulations, not inconsistent with the laws of this state, as the stockholders may pass from time to time in general meeting.^ Sec. 571. Dissolution- Voluntary Dissolution.— The stockholders may at any time in general meeting resolve to 1 W. Va. Code 1887, c. 53, § 51. * W. Va. Code 1887, c. 53, § 54. " W. Va. Code 1887, c. 53, § 52. « W. Va. Code 1887, c. 53, § 55. » W. Va. Code 1887, c. 53, § 53. 49 770 VOLTTNTART DISSOLUTION. discontinue the business of the corporation, the majority of the capital stock being represented and voted in favor of such discontinuance ; and may divide the property and assets that may remain after paying all debts and liabilities of the cor- poration. Public notice of such resolution shall be imme- diately given by advertisement in soine newspaper of general circulation, published near the principal office or place of busi- ness of the corporation, once a week for six weeks at least, before any dividend of the capital shall be made ; and the said resolution shall be forthwith certified by the president under his hand and the common seal of the corporation to the secretary of state, who shall preserve the same in his office, and deliver a copy to the clerk of the house of dele- gates, to be printed and bound with the acts of the legislature. As soon as practicable after such resolution is passed, the stockholders shall cause ample funds and assets to be set apart, either in the hands of the trustees or otherwise, to secure the payment of all debts and liabilities of the corpo- ration ; and any creditor who supposes his claim not to be sufficiently secured thereby, whether such claim be then due or thereafter to become due, may on bill in chancery, if suffi- cient cause therefor be shown, obtain an injunction to prevent the distribution of the capital and a decree against any stock- holder for the amount of the capital received by him ; and if necessary or proper in the case, the court may appoint a re- ceiver to take charge of and administer the property and assets of the corporation.^ Sec. 572. Same— Proceedings in Equity to Dissolve a Corporation. — If not less than one third in interest of the stockholders of a corporation desire to wind up its affairs, they may apply by a bill in chancery to the circuit court of the county^in which the principal office or place of business of such corporation is situated, or if there be no such office or place of business in this State, to the circuit court of the county in which the other stockholders or any one or more of them reside, or are found, or in which the property of such corporation or any part of it may be, setting forth in the bill 1 W. Va. Code 1887, c. 53, § 56. EFFECT OF DISSOLUTION. 771 the grounds of their application ; and the court may there- upon proceed according to the principles and usages of equity to hear the matter, and if sufficient cause therefor be shown,, to decree a dissolution, of the corporation, and make such orders and decrees, and award such injunctions in the cause; as justice and equity may require.^ Sec. 573. Receiver. — When a corporation expires, or is dissolved, or before its expiration or dissolution, upon suffi- cient cause being shown therefor, such court as is mentioned in the preceding section may, on application of a creditor or stockholder, appoint one or more persons to be receivers to take charge of and administer its assets ; and whether such receiver be appointed or not, may make such orders and decrees, and award such injunctions in the cause, as justice and equity may require. This section shall apply to corpo- rations, heretofore or hereafter, chartered by another state, vrhich may have done business and acquired property, or contracted debts, in this state, and any of whose creditors, or stockholders, or their personal representatives, reside herein ; and the circuit court of any county wherein such creditor^ stockholder, or personal representative, may reside, or where such assets or property or part thereof may be, or where the person owing such debts, or having such property in posses- sion, may reside, shall afford such relief as is prescribed in this and the next section.^ Sec. 574. Effect of Dissolution or Expiration of a Cor- poration. — When a corporation shall expire or be dissolved, its property and assets shall, under the order and direction of the board of directors then in office, or of the receiver or receivers appointed for the purpose by such circuit court as is mentioned in the fifty-seventh section of this chapter,^ be subject to the payment of the liabilities of the corporation, ahd the expenses of winding up its affairs ; and the surplus, if any, then remaining, to distribution among the stockholders according to their respective interests. And suits may be brought, continued or defended, the property, real or per- 1 W. Va. Code 1887, c. 53, § 57. » See ante, § 572. 2 W. Va. Code 1887, c. 53, § 58. 172 EXAMINATION OF KEPOET BT LBGISLATUKE. sonal of the corporation be conveyed or transferred under the common seal or otherwise, and all lawful acts be done in the corporate name, in like manner and with like effect as before such dissolution or expiration ; but so far only as shall be necessary or proper for collecting the debts and claims due to the corporation, converting its property and assets into money, prosecuting and protecting its rights, enforcing its liabilities, and paying over and distributing its property and assets, or the proceeds thereof, to those entitled thereto. i Sec. 575. Examination or Report required by the Leg- islature. — Every corporation subject to this chapter shall exhibit its books, papers and property, to such agents or committees as the legislature may from time to time appoint to examine the same ; and when required by the legislature, shall report thereto a full, fair and detailed exhibit of its property, liabilities and condition, verified by the oath of the president, and of the secretary or principal bookkeeper. ^ Sec. 575a. Service of Process or Notice.— Process on, or notice to, a corporation may be served as is provided in sec- tion seven of chapter one hundred and twenty-four of this code.2 Sec. 576. Quantity of Land which a Corporation may Hold.— No corporation subject to this chapter, whether incor- porated under special charter or general law, shall hold more than one hundred acres of land ; except that a company for mining iron, lead or copper ore, and manufacturing the same into metal, may hold ten thousand acres for every charcoal blast furnace, and three thousand acres for every other furnace ; companies for mining and selling coal, ten thousand acres each ; other mining companies, salt companies and oil companies, three thousand acres each ; other manufacturing companies, ^ne thousand acres each; and a springs company, fifteen hundred acres ; nor shall any corporation, subject to this chapter, hold more than five acres in any incorporated town or city, except as provided in the fourth section of chapter fifty-two of this code, and except that societies 1 W. Va. Code 1887, c. 53, § 59. » W. Va. Code 1887, c. 53, § 61, "W. Va. Code 1887, e. 53, § 60. PEESEEVATION OF PEACE. 773 formed to promote agriculture or stock raising, may hold not exceeding thirty acres in any incorporated town or city. But nothing in this section contained shall be construed to prevent any company heretofore incorporated from holding such number of acres of land, in addition to the number herein prescribed, as may be authorized by its charter. But any such springs company now owning or occupying the real estate of a former springs company may take, hold and use the same, notwithstanding the quantity thereof shall exceed fifteen hundred acres.-' Sec. 577. Preservation of the Peace, etc. — Every incor- porated springs company may adopt by-laws, rules and reg- ulations for the preservation of the peace and good' order within the boundary lines of its real estate, and for the arrest of persons violating the penal laws of the state within said lines. And the board of directors of any such corporation may, from time to time, appoint such number of police officers as may be deemed necessary to carry into effect the objects and purposes of this section ; and the officer so appointed shall have all the powers within the territory for which he is appointed, in criminal cases, as a constable of a district has under the law.^ 1 W. Va. Code 1887, c. 53, § 62. » W. Va. Code 1887, c. 53, § 63. CHAPTER XXX. WEST VIRGINIA CORPORATIONS— INCORPORA- TION OF JOINTS-TOCK COMPANIES WITHOUT SPECIAL CHARTER. PUEPOSES FOR WHICH FORMED — CAPITAL STOCK — MODE OF INCQRPORATION — PER CENT. TO BE PAID — AGREEMENT — DURATION — STOCK AND ITS VALUE — DIRECTORS — FIRST MEETING OF STOCKHOLDERS — SALE OF ADDITIONAL STOCK — CERTIFICATE OF INCORPORATION — INCREASE AND BE- DUCTION — MEETINGS AND PRINCIPAL OFFICE — TAXATION — SALE OF PROPERTY AND WORKS — LIABILITY OP STOCK- HOLDERS FOR DEBTS. Sec. 578. To what chapters such companies shall be subject. Sbc. 579. The purposes for which they may be formed. Skc. 580. Formation of corporations for certain purposes prohibited. Sec. 581. Capital stock. Sec. 582. Same — Limitation of. Sec. 583. Mode of incorporation and duration. Sec. 584. Ten per cent, of stock must be paid in. Sec. 585. Agreement must be acknowledged. Sec. 586. Certificate of secretary of state. Sec. 587. Effect of certificate of incorporation. Sec. 588. Duration of corporation. Sec. 589. Existing corporations may accept this chapter. Sec. 590. Stock— Par value of— Change of. Sec. 591. Directors^Term of office of the first. Sec. 592. First meeting of stockholders. Sec. 593. Salt of additional stock before organization. Sbc. 594. Certificate of incorporation — Recording, publication and official copies. Sec. 595. Same — Secretary's fees. Sec. 596. Same— Certified copy of— Equivalent as evidence to the original. Sec. 597. Same— Recorded in county clerk's office. Sec. 598. Increase or reduction of the number of shares or the par value of the stock. BEPOETS FOR "WHICH MAY BE FORMED. 775 Sec. 599. Same — To be certified to the secretary of state. Sec. 600. Meetings and principal office. Shc. 601. Power of attorney to accept service of process. Sec. 602. Taxation of corporations. Sbc. 603. Sale of property and works of corporations other than railroad companies. Sec. 604. Stockholders — Liability for debts of company. Sec. 578. To what Chapters such Companies shall be Subject. — Joint-stock companies, incorporated under this chapter, shall be subject to the provisions of the fifty-second and fifty-third chapters of the code,^ so far as the same are applicable.2 Sec. 579. The purposes for which they may be formed. — Such companies may be incorporated for the following pur- poses : I. For manufacturing, mining or insuring. II. For constructing and maintaining lines of magnetic telegraph, telephones, lines of piping or tubing for the transportation of oils or other fluids ; and carrying on the business properly pertaining to such works and improve- ments. III. For establishing hotels, and springs companies, gas works, water works, cemeteries, or building and loan asso- ciations, and transacting the business properly pertaining thereto. IV For universities, colleges, academies, seminaries, schools, or institutes, for the purpose of teaching any branch or branches of useful information or learning, or promoting religion, morality, military science or discipline ; or the diffu- sion of knowledge, including library companies and literary and scientific associations. V. For asrricultural and industrial societies. VI. For benevolent associations, societies and orders, including orphan, blind and lunatic asylums and hospitals, lodges of free and accepted masons, independent order of odd fellows, improved order of red men, sons of temperance, good templars and knights of pythias, and all other associations^ societies and orders of like character. 1 See anie, chapters xxviii, xxix. ^ W. Va. Code 1887, c. 54, § 1. 776 CAPITAL STOCK — LIMITATIONS OF. VII. For gymnastic purposes. VIII. For railroads and other works of internal improve- ment. IX. For banks of issue and circulation, and of discount and deposit, and for savings institutions. X. And for any other purpose or business useful to the public for which a firm or copartnership may be lawfully formed in this state.^ Sec, 580. Formation of Corporations for Certain Pur- poses Prohibited.— But this chapter sliall not be construed to authorize the incorporation of any church or religious de- nomination, or of any company the object or one of the objects of which is to purchase lands and re-sell the same for profit.^ Sec. 581. Capital Stock,— The capital stock shall be divided into shares, as prescribed by the fifteenth section ^ of chapter fifty-three of the code.* Sec. 582, Same— limitation of.— The capital of a cor- poration formed under this chapter, except for railroad or canal purposes, shall not exceed five millions of dollars.* Sec. 583. Mode of Incorporation and Duration.— Any number of persons, not less than five, desiring to become a corporation for any purpose of business designated in the second section, except for railroad purposes, shall sign an agreement to the following effect : " The undersigned agree to become a corporation by the name of (here insert the name by which it is intended the corporation shall be known) for the purpose of (here describe fully and particularly the purpose for which the corporation is to be formed, and the kind of business intended to be carried on by it), which cor- poration shall keep its principal office or place of business at , in tlft county of , and is to expire on the day of . And for the purpose of forming the said corporation we have subscribed the sum of dollars to the capital thereof, and have paid in on said subscription the sum of dollars ; and desire the privilege of increasing the said capital. 1 W. Va. Code 1887, c. 54, § 2. * W. Va. Code 1887, c. 54, § 4. 2 W. Va. Code 1887, c. 54, § 3. « W. Va. Code 1887, c. 54, § 5. "Ante, §531. ACKNOWLEDGMENT OP AGREEMENT. 777 by the sale of additional shares, from time to time, to dollars in all. The capital so subscribed is divided into shares of dollars each, which are held by the undersigned respectively, as follows, that is to say : By (here insert the name of each incorporator, with his residence and the number of shares held by him). And the capital to be hereafter sold is to be divided into shares of the like amount. Given under our hands this day of ." ^ Sec. 584. Ten per cent, of Stock must be Paid in.— No person shall be included as a corporator in any such agree- ment, by reason of any stock subscribed for by him, unless he has in good faith paid to the person who may have been appointed or agreed upon to receive the same for the intended corporation, at least ten per cent, of the value of said stock.^ Sec. 585. Agreement must be Acknowledged.^ — The agreement shall be acknowledged by the several corporators before a justice, notary or judge ; and such acknowledgment shall be certified by the officers before whom they are made. The affidavits of at least two of the corporators named in the agreement shall be annexed thereto, to the effect that the amount therein stated to have been paid on the capital has been in good, faith paid in, for the purposes and business of the intended corporation, without any intention or under- standing that the same shall be withdrawn therefrom before the expiration or dissolution of the corporation.^ Sec. 586. Certificate of Secretary of State.— The agree ment, with the acknowledgments and affidavits aforesaid, shall be delivered to the secretary of state, who shall there- upon issue to the said corporators his certificate, under the great seal of the state, to the following effect : " I, A B , secretary of the State of West Virginia, hereby certify that an agreement, duly acknowledged and accompanied by the proper affidavits, has been this day delivered to me ; which agreement is in the words and figures following: (here insert.) Wherefore, the corporators named in the 1 W. Va. Code 1887, c. 54, § 6. » W. Va. Code 1887, c. 54, § 8. " W. Va. Code 1887, c. 54, § 7. 778 CEKTIFICATE OF INCOEPOBATION. said agreement, and who have signed the same, and their successors and assigns, are hereby declared to be from this date until the day of a corporation by the name and for the purposes set forth in the said agreement. Given under my hand and the great seal of the said state at this day of ."i Sec. 587. Effect of Certificate of Incorporation.— When a certificate of incorporation shall be issued by the secretary of state, pursuant to this chapter, the corporators named in the agreement recited therein, and who have signed the same, and their successors and assigns, shall, from the date of the said certificate until the time designated in the said agreement for the expiration thereof, unless sooner dis- solved according to law, be a corporation by the name and for the purposes and business therein specified. And the said certificate of incorporation shall be received as evidence of the existence of the corporation as aforesaid. Any corpo- ration organized for any one or more of the purposes men- tioned in the first and tenth subdivisions of the second section of this chapter ^ may, by resolution, concurred in by a majority of all the stockholders, representing a majority of the capital stock, and entered upon its records at a meeting specially called for the purpose, of which all the stockholders shall have had notice, agree to and adopt a new agreement, so as to enlarge or diminish the objects and purposes, within the limits of said two sub-divisions of section two, for which such corporation may have been organized ; or, so as to increase or diminish the number of its shares of capital stock by con- solidating or subdividing the same, but so that in no case shall any fractional share or shares of unequal value be created. A copy of such resolution containing such new agreement, -^hen acknowledged by such majority of the stockholders in the manner prescribed by the eighth section of this chapter,^ shall be delivered to the secretary of state, who shall thereupon issue his certificate in the form pre- scribed in the ninth section of this chapter,^ so far as the said form may be found applicable ; and from thence such corpo- 1 W. Va. Code 1887, c. 54, § 9. ^ See ante, § 585. 2 See ante. § 579. * See ante, § 586. DURATION OP OOEPOEATION. 779 ration shall be subject to such new agreement and certificate. And all the provisions of this chapter shall apply to such new certificates and to the corporations leceiving the same in like manner as to original agreements and certificates of incorporation, except as herein otherwise provided.^ Sec. 588. Duration of Corporation. — No corporation formed under this chapter, except life insurance companies and such as are formed exclusively for the purposes men- tioned in the fourth, fifth, sixth, seventh, eighth and ninth clauses of the second section,^ shall continue for more than fiftj' years from the date of its certificate of incorporation. Any corporation heretofore formed under the general laws of this state and now in existence, may extend the time of its continuance beyond that limited in the agreement for its formation for such additional time, not exceeding fifty years, as it may desire, in the manner following : The stockholders of such corporation may, at a general or special meeting, adopt a resolution to extend the time of the continuance of such corporation, for such time, not exceeding fifty years, as may be decided upon by said stockholders, a majority of the stock of such company being represented by the holders thereof, in person or by proxy, and voting for such resolution ; but notice of the intention to offer such resolution must have been given by advertisement, published once a week for four successive weeks, in some newspaper of general circulation printed in this state. When such resolution shall have been adopted by any corporation, the president thereof, shall, under his signature and the common seal of the company, certify the resolution to the secretary of state, and the secretary, under his hand and the great seal of this state, shall issue to the company adopting sucli resolution a certificate reciting the resolution and declaring the proposed extension to be authorized by law, which certificate shall be received in all courts and places as evidence of the extension of the contin- uance of such corporation, and of the authority for the same. The provisions of section seventeen, eighteen, nineteen and twenty of this chapter^ shall apply to such certificate.* 1 W. Va. Code 1887, o. 54, § 10. ^ See post, §§ 594, 595, 596, 597. 2 See ante, § 579. * W. Va. Code 1887, c. 54, § 11. 780 CHANGE OF PAR VALUE OP STOCK. Sec. 589. Existing Corporations may Accept tliis Chap- ter.— The stockholders of any incorporated joint-stock com- pany now existing in this state (banks of circulation and companies incorporated for the construction of works of internal improvement excepted) may, by resolution in gen- eral meeting, accept the provisions o! this and the preceding chapter of the code. And. thereupon a copy of the resolution shall be filed with the secretary of state, together with a statement showing the name by which the corporation had theretofore been known, and the name, whether it be the same or a different one, by which it is intended it should be known thereafter ; the business to be carried on ; the place where such business is to be carried on and where the prin- cipal office is to be kept ; the time when the corporation is tO' expire, subject to the limitation contained in the eleventli section of this chapter ; the amount of the whole capital ; the amount of the capital paid in ; the amount to which it is intended to reserve the privilege of increasing the same, and the par value of each share ; which copy and statement shall be certified by the president under his hand and the common seal of the corporation. And the secretary of state shall thereupon issue a certificate of incorporation under his liand and the great seal of the state, reciting the said resolution and statement, and declaring the said corporation to be there- after, until the time mentioned in the said statement for the expiration thereof, a corporation by the name which it is intended it should thereafter bear, and for the purpose and business therein set forth, unless sooner dissolved according to law. Certificates of incorporation issued pursuant to this section shall be received as evidence of the existence of the corporations as therein declared ; and the said corporations shall no longer be under their former charters, but shall have all the riglits, privileges and powers, conferred by this and the fifty -second and fifty-third chapters of this code,i and shall be subject to the liabilities, restrictions and regulations, therein prescribed.^ Sec. 590. Stock— Par value of— Change of.— A corpora- ^ See ante, chapters xxviii, xxix. ^ ^_ y^. Code, 1887, c. 54, § 12. DIRBCTOES — TEEM OF FIEST BOAED. 781 tion, at the time when it accepts the provisions of this chapter, may change the par value of its shares, as the stockholders thereof in general meeting, or the board of directors under authority given them by the stockholders, may determine ; in wliich case the statement to be filed as aforesaid with the secretary of state shall show the proposed change, and the same shall have effect from the date of the certificate of in- corporation .^ Sec. 591. Directors— Term of Office of the First.— When a certificate of incorporation is issued pursuant to the twelfth sectiou,^ the board of directors and officers then in office may continue to act in their respective capacities until the next annual meeting of the stockholders, and thereafter until their successors have been chosen and qualified, or until a general meeting, called pursuant to the forty-first section of chapter fifty-three^ of the code, shall elect a new board or make such order in the matter as they deem right.* Sec. 593. First Meeting of Stockholders.— When a cer- tificate of incorporation is issued under the ninth section, the corporators named in the agreement recited therein, or a majority of them, shall appoint the time and place for hold- ing a genera] meeting of the stockholders to elect a board of directors, make by-laws, and transact any other business which may lawfully be done by the said stockholders in gen- eral meeting. The time appointed for the meeting shall not be less than twenty-one nor more than ninety days from the date of the certificate, and at least two weeks' notice of such meeting shall be given by advertisement in the manner pre- scribed in the forty-first section of chapter^ fifty three of the code.® Sec. 593. Sale of Additional Stock before Organiza- tion. — After a certificate of incorporation has been issued pursuant to the ninth section, and before a board of directors have been elected or qualified, additional shares of the capi- tal stock may be disposed of, so that the maximum capital be not exceeded in such manner, on such terms, at such times 1 W. Va. Code 1887, c. 54, § 13. * W. Va. Code 1887, c. 54, § 14. 2 See ante, § 589. ^ W. Va. Code 1887, c. 54, § 15. 2 See ante, § 557. * See ante, § 586. 782 CERTIFICATE OP INCOEPOEATION. — KECOED OP. and places, and under the superintendence of such persons as the corporators named in the agreement recited in such certi- ficate, or those holding a majority of the shares, may appoint, but subject to the provision of the twenty-third and the four following sections ^ of chapter fifty-three of the code.^ Sec. 594. Certificate of incorporation — Recording, Publication and Official Copies of. — The secretary of state shall carefully preserve in his office the agreements, resolu- tions and statements, mentioned in the sixth ^ and twelfth* sections ; and cause to be accurately recorded in a well-bound book, to be kept in his office, all certificates of incorporation and certificates of change of name, which he shall issue under this or the preceding chapter. If he omit to record any such certificate, or if any error be discovered in the record thereof, he shall forfeit, for every such neglect or default, not less than ten nor more than fifty dollars. At the beginning of every regular session of the legislature, he shall deliver to the cleik of the house of delegates accurate copies of every certi- ficate of incorporation not before reported by him ; and it shall be the duty of such clerk to cause the same to be printed and bound with the acts of the session. If the said secretary or clerk fail therein, the party so in default shall forfeit not less than one nor more than fifty dollars.^ Sec. 595. Same— Secretary's Fees. — The secretary may charge a fee of four dollars for every such certificate issued by.him; and for recording the original, or issuing a certified copy, a fee of fifty cents or, in lieu thereof, fifteen cents for every hundred words ; which fees shall be paid at the time the service is rendered by the person at whose instance it was done.^ Sec. 596. Same— Certified Copy of— Equivalent as Evi- dence to the Original — The secretary may at any time issue a copy of sfich certificate, and such copy certified under his hand, and also the copy printed with the acts of the legisla- ture, shall as evidence be equivalent to the original.^ 1 See ante, §§ 539, 540. 541, 542, 543. « W. Va. Code 1887, c. 54, § 17. 2W. Va. Code 1887, c. 54. § 16. s W. Va, Code 1889, c. 54, § 18. 2 See ante, § 584. See W. Va. Code, c. 137, § 1. * See ante, § 589. J W. Va. Code, 1887, c. 54, § 19. INCEBASE OE EEDUCTION OP NUMBEES OF SHAEES. Y8S Sec. 597. Same— Eecorded in County Clerk's OflBce.— The company shall cause the said certificate, within three months after it has been issued, or a copy thereof certified as aforesaid, to be delivered for record to the clerk of the county court in which the principal office or place of business of such company is kept, and the clerk of the county court shall record the same in his office. If such company fail therein, it shall be fined not exceeding one thousand dollars.^ Sec. 598. Increase or Reduction of the Number of Shares or the par value of the Stock. — Any corporation formed, or which may hereafter be formed, or which has accepted or may accept the provisions of this chapter, may, by resolution at any general or special meeting of the stockholders thereof, make such increase or reduction in the number of shares of its capital stock, or the par value of each share, as may be decided upon by said stockholders, a majority of the stock of such company being represented by the holders there- of, and such holders being present either in person or by proxy, and voting for such increase or reduction. Provided, that notice be given by advertisement, published four succes* sive weeks, in some newspaper of general circulation printed in this state, of the intention to offer such resolution.^ Sec. 599. Same— To be Certified to the Secretary of State. — When such increase or reduction shall have been made by any such company, the president thereof shall, under his signature and the common seal of the company, certify the resolution to the secretary of state, and the secre- tary of state, under his hand and the great seal of this state shall issue, to the company so making such increase or reduc- tion, a certificate reciting the resolution and declaring the proposed increase or reduction to be authorized by law, which certificate shall be received in all courts and places as evidence of the change in the number or par value of the shares of the capital stock of such company, and of the authority to increase or reduce the same.^ Sec, 600. Meetings and Principal Office.— The stock- 1 W. Va. Code 1887, c. 54, § 20. » W. Va. Code 1887, c. 54, § 22. 2 W. Va. Code 1887, c. 54, § 21. '784 ATTOKNBY TO ACCEPT SEKVICB OI" PEOCESS. holders or directors of any corporation formed under or accepting the provisions of this chapter, may hold meetings for the transaction of the lawful business of the corporation, including the first general meeting for purposes of organiza- tion, out of this state, and may keep their principal ofiSce in any state or territory of the United S fates, or in the District of Columbia. But no meeting shall be held out of this state without the concurrence of persons holding a majority in value of the stock of the company, nor without reasonable notice.! Sec. 601. Power of Attorney to Accept Service or Pro- cess. — Every such corporation having its principal office or place of business in this state, shall, within thirty days after organization, by power of attorney duly executed, appoint some person residing in the county in this state wherein its business is conducted, to accept service on behalf of said cor- poration, and upon whom service may be had of any process or notice, and to make such I'eturn for and on behalf of said corporation to the assessor of the county or district wherein its business is carried on, as is required by the fortj' -first sec- tion of the twenty-ninth chapter of the code. Every such corporation having its principal office or place of business outside of this state, shall within thirty days after organizing, by power of attorney duly executed, appoint some person residing in this state to accept service on behalf of said cor- poration, and upon whom service may be had of any process or notice, and to make return of its property id this state for taxation as aforesaid. The said power of attorney shall be recorded in the office of the clerk of the county court of the county iu which the attorney resides, and filed and recorded in the office of the secretary of state, and the admission to record of such power of attorney shall be deemed evidence of compliance with the requirements of this section. Corporations heretofore organized may comply with said requirements at any time within three months after the pas- sage of this act. Any corporation failing to comply with 1 W. Va. Code 1887, c. 54, § 23. TAXATION OF COEPOKATIONS. 785 said requirements within six months after the passage of this act shall forfeit not less than two hundred nor more than five hundred dollars, and shall, moreover, during the continuance of such failure, be deemed a non-resident of this state ; and its property, real and personal, shall be liable to attachment in like manner as the property of non-resident defendants ; any corporation failing so to comply within twelve months after the passage of this act shall, by reason of such failure, forfeit its charter to the state, and the provisions of section eight, chapter twenty, acts one thousand eight hundred and eighty-five, relative to notice and publication, shall apply thereto.^ Sec. 602. Taxation of Corporations, — He (the assessor) shall ascertain from the proper officers or agents of all incor- porated companies in his district (except xailroads and foreign insurance, telegraph and express companies), the actual value of the capital employed or invested by them in their trade or business (exclusive of real estate and property exempt by law from taxation), and enter the same in his personal prop- erty book. The real estate of such companies shall be assessed and entered in the land book as in other cases. The value of the capital shall be estimated by taking the aggre- gate value of all the personal property of the company, not exempt from taxation, wherever situated, including their money, credits and investments, whether in or out of the state, and deducting from the said money, credits and invest- ments, and not from said aggregate, what they owe to others as principal debtors. If a company have branches, each branch shall be assessed separately in the district, where the principal offce for transacting its financial concerns is located, or if there be no such office, then in the district where its operations are carried on. All property of navigation com- panies and other joint stock transportation companies (except railroads), whether real or personal, shall be taxed in the county and district wherein such property is situated, and all locks and dams of navigation companies shall be assessed and taxed as real estate, in the county in which said locks and 1 W. Va. Code 1887, c. 54, § 24. 50 786 SALE OF COEPOEATE PEOPBBTY. dams are situated, and it shall be the duty of the assessor of each district to assess such property as hereinbefore directed. When the capital of a company is assessed as aforesaid, the personal property thereof, which shall not be held to include the locks or dams of a navigation company, shall not be otherwise assessed, nor shall any individual shareholder or partner therein be required to list or be assessed with his share, portion or interest, in the said capital.^ Sec. 603. Sale of Property and Works of Corporations othei" than Railroad Companies. — Whenever there has been since the first day of February, one thousand eight hundred and seventj'-seven, or shall hereafter be, a sale of the works and property of any corporation other than a railroad corpo- ration, under a decree, mortgage or trust deed, and there be a conveyance to the purchaser for the same, said purchaser or purchasers shall become a corporation in the same manner and be entitled to the franchises of the old corporation in the same manner as provided for railroad corporations in such cases in section seventy-two of this chapter, and the old corporation shall be ipso facto dissolved. But the purchaser at said sale shall not obtain the works constructed, or property acquired, after the making of the said deed or trust or mortgage.^ Sec. 604. Stockholders— Liability for debts of Com- pany. — The stockholders of all corporations and joint-stock companies, except banks and banking institutions, created by laws of this state, shall be liable for the indebtedness of such corporations to the amount of their stock subscribed and un« paid, and no more.^ 1 W. Va. Code 1887, c. 29, § 64 « W. Va. Const., Art. XI, § 2. 2 W. Va. Code 1887, c. 54, § 82. CHAPTER XXXI. IVEST VIRGINIA CORPORATIONS— HOMESTEAD AND BUILDING ASSOCIATION. PURPOSES — LIMITATIONS — ^EIGHTS AKD POWBBS — LIABILITY OF STOCKHOLDEKS — ^BY-LAWS. Sec. 605. For what purposes formed. Sec. 606. Limitation as to the use of funds. Sec. 607. Rights, powers and privileges. Sec. 608. Liability of stockholders. Sec. 609. By-laws and articles of government. Sec. 605. For what Purpose formed.— Building and loan associations, formed under this chapter, may be for the pur- poses of raising money, as hereinafter provided, to be dis- tributed among their members, and by such members used in buying lands or houses, or in building or repairing houses, or for paying and liquidating liens on houses and other real estate.^ Sec. 606. Limitation as to nse of Funds. — In any case where the money of any such association shall be diverted from the purposes expressed in the preceding section, such association shall not be entitled to the privileges conferred upon it in the succeeding section.^ Sec. 607. Bights, Powers and Privileges.— Every build- ing and loan association may, by its by-laws, fix an ultimate value for the shares of its stock, so that the same be not less than one hundred and thirty dollars for each share, and at any time may pay in advance to such member, as shall bid •' W. Va. Code 1887, c. 54, § 25. ' W. Va. Code 1887, c. 54, § 26. 788 LIABILITY OF STOCKHOLDERS. the highest premium therefor at a hona fide sale, the ultimate value of auy shares held by him less such premium j or in default of bidders at or above a minimum premium, may award to a member the ultimate value of any shares held by him less such minimum premium ; the minimum premium and the mode of making and enforcing the award to be fixed by the by-laws. Such association may also levy, assess and collect from its members, stated dues upon every share of its stock, the amount of such dues to be fixed by its by-laws, but not to exceed twenty-five cents per week upon each share, and may levy, assess and collect from members to whom the ultimate value of shares, less the premium as aforesaid, shall have been advanced or awarded, stated dues upon each of such shares, in addition to those assessed upon other shares ; but not exceeding upon each share three-fourths of the amount of such other dues, which additional dues shall be fixed by the by-laws. It may also levy, assess and collect from its members fines for default in the payment of any dues, or for failure to comply with or perform any other obligation or duty to the association. The amount of the respective fines shall be fixed by the by-laws, and they shall be imposed under regulations to be made in the by-laws, but such fines shall be uniform, and where they are for default in the payment of dues, shall be in proportion to the amount of the dues for the failure to pay which they are imposed ; but no member shall be fined more than once for a failure to pay interest or dues for the same default. The transaction shall not be deemed usurious, although any or all of the dues, fines and premiums shall exceed the legal rate of interest on the amount of money received by the member.^ Sec. 608. Liability of Stockholders.— In cases where there shall be an advance or award to a member of the ultim- ate value of any shares, less the premium as aforesaid, the association may take personal security, or a mortgage or deed of trust upon real or personal property, or a transfer or pledge of shares of its stock, to secure the payment of all the dues to become due from such member, and the payment of any 1 W. Va. Code 1887, c. 54, § 27. BY-LAWS FOK GOVERNMENT OF. 789 fine which may become due from him. Such association may- acquire, hold, convey and encumber all such property, real and personal, as may be so taken as security, or may be otherwise transferred to it in the due course of its legitimate business. Sec. 609. By-laws and Articles of Government.— Every such association shall adopt by-laws, which shall embrace all the provisions of the four preceding sections, and such further provisions for its government and the management of its business, not inconsistent with these sections, as it may deem proper. 1 W. Va. Code 1887, c. 54, § 28. . « W. Va. Code 1887, c. 64, § 29. PABT IV- CONSOLIDATED OORPOEATION ACT. CHAPTER XXXII. THE GENERAL CORPORATION LAW. Seo. 610. Short title. Seo. 611. Definitions. Sec. 612. Tiling and recording certificates of incorporation. Sec. 613. Corporations of the same name prohibited. Sec. 614. Amended certificates. Sec. 615. When copy certificate may be filed. Seo. 616. Certificate and other papers to be evidence. Seo. 617. General powers. Sec. 618. Incidental powers. Sec. 619. When additional lands may be acquired. Sec. 620. May hold property in other states. Seo. 621. When foreign corporation may hold real estate. Seo. 622. May purchase at mortgage foreclosure; Seo. 623. Banliing powers prohibited. Sec. 624. Powers of supreme court respecting election. Sec. 625. Stockholder or member may stay proceedings In action col- lusively brought. Seo. 626. Majority to act. Sec. 627. Corporation not dissolved for failure to elect directors. Sec. 628. Directors to be trustees in case of dissolution. Sec. 629. Their powers as such trustees. Sec. 630. Forfeiture for non-user. Sec. 631. Extension of corporate existence. Sec. 632. Laws repealed. Sec. 633. Saving clause. Sec. 634. Constructions. Sec. 635. When to take effect. Sec. 610. • Short title. — This chapter shall be known as the general corporation law.^ Sec. 611. Definitions- — A municipal corporation includes a county, town, school district, village and city, and any other territorial division of the state established by law with pow- 1 L. 1890, c. 563, § 1. CERTIFICATES OP INCORPOEATION. 793 ers of local goverment. A domestic corporation is a corpor- ation incorporated by or under the laws of the state or colony of New York. Every other corporation is a foreign corporation. A stock corporation is a corporation having capital stock divided into shares. A monied corporation is a corporation having banking powers, or the power to make loans upon pledges or deposits, or authorized bj'^ law to make insurances. The term " directors," when used in any act relating to corporations, shall include trustees or other persons by whatever name known, duly appointed or designated to manage the affairs of the corporation. The term " certifi- cate of incorporation " shall include articles of association, or any other written instrument required by law to be exec- uted to effect the incorporation of a corporation. Sec. 613. Filing and recording certificates of incor- poration. — Every certificate of incorporation and amended certificate shall be filed in the office of the secretary of state and of the clerk of the county, where the principal place of business of the corporation is or is to be located and recorded in books, properly indexed, and especially provided therefoi- except religious and cemetery corporations, whose certificates may be filed and recorded only in the office of the clerk of the county, where the corporation is located, and except monied corporations whose certificates of incorporation must be filed in accordance with the provisions of law relating thereto, and except municipal and fire department corporations. All taxes required by law to be paid before incorporation, and the fees for filing and recording such certificate must be paid before filing ; and no corporation shall exercise any corporate powers or privileges until such taxes and fees have been paid.2 Sec. 613. Corporations of same name prohibited. — No certificate of a proposed corporation shall be filed or recorded, having the same name as an existing domestic corporation, or a name so nearly resembling it as to be calculated to deceive, but a new or reorganized corporation may have the same 1 L. 1890, c. 563, § 2. 2 id., § 3. 794 AMENDED CEETIPICATES — GENRAL POWERS. name as the corporation to whose franchises it has succeeded.^ Sec. 614. Amended certificates. — The directors of any corporation, in whose original certificate any matter required to be therein stated has been omitted, may make and file an amended certificate to conform to the requirements of law ; and thereupon such corporation shall, for all purposes, be deemed to be a corporation, from the time of filing the origi- nal certificate, but without prejudice to any pending action or proceeding, or to any rights previously accrued.^ Sec. 615. When copy certificate to be filed. — If either of the duplicate certificates of incorporation shall be lost or de- stroyed after filing, a certified copy of the other certificate may be filed in the place of the one so lost or destroyed and as of the date of its original filing, and such certified copy shall have the same force and effect as the original certificate had when filed.3 Sec. 616. Certificate and other papers to be evidence.— The certificates of incorporation of any corporation duly filed shall be presumptive evidence of its incorporation, and any amended certificate or other paper duly filed relating to the incorporation of any corporation, or its existence or manage- ment, and containing facts required by law to be stated there- in, shall be presumptive evidence of the existence of such facts.* Sec. 617. General powers. —Every corporation as such has power, though not specified in the law under which it is in- corporated : 1. To harve succession for the period specified in its certi- ficate of incorporation or by law ; and perpetually when no period is so specified. 2. To have a common seal, and alter the same at pleasure, 3. To acquire%y grant, gift, devise or bequest, and to dis- pose of such property as the purposes of the corporation shall require, not exceeding the amount limited by law. 4. To appoint such subordinate officers and agents, as its I L. 1890, c. 563, § 4. * Id., § 6. * W., § 5. * Id., § 7. INCIDENTAL POWERS. 795 business shall require, and to allow them a suitable compensa- tion, and 5. To make by-laws, not inconsistent with any existing law, for the management of its property, the regulation of its affairs, and the transfer of its stock. But no by-law regu- lating the election of directors or officers shall be valid, unless published for at least two weeks in a newspaper in the county where the election is to be held, and at least thirty days before such election. Subdivisions four and five of this section shall not apply to municipal corporations.^ Sec. 618. Incidental powers. — In addition to the powers herein enumerated, and those expressly given in the law under which it is or shall be incorporated, no corporation shall possess or exercise any corporate powers, except such as shall be necessary to the exercise of the powers so enumerated and given. '^ Sec. 619. When additional lands may be acquired. — When any corporation shall have sold and conveyed any part of its real estate, the supreme court may authorize it to pur- chase and hold from time to time other lands, upon satisfactory proof tliat the value of the lands so purchased does not exceed the value of the lands so sold and conveyed within the three years next preceding the application. ^ Sec. 620. May hold property in other states. — Any domestic corporation transacting business in other states or foreign countries may acquire and convey such real property therein and such personal property as shall be requisite for such corporation in the convenient transaction of its business.* Sec. 621. When foreign corporation may hold real estate. — Any foreign corporation doing business in this state may acquire such real property in this state as may be neces- sary for its corporate purposes in the transaction of its bus- iness within the state, and convey the same by deed or other- wise in the same manner as a domestic corporation.^ 1 L. 1890, c. 563, § 8. < Id., § 11. 2 Id., § 9. 5 Id., § 12. » Id., § 10. 796 POWERS OF COURT OVER ELECTIONS. Sec. 522. When may purchase at mortgage foreclo- Sure.^-Any foreign corporation may pui'chase at a sale upon the foreclosure of anj^ mortgage held by it, or upon any judg- ment or decree for debts due it, or upon any settlement to secure such debts, any lauds lying within this state covered by or subject to such mortgage, judgme'nt, decree or settle- ment, and hold the same for not exceeding five years from the date of such purchase, and convey them by deed or other- wise, in the same manner as a domestic corporation.^ Sec. 623. Banking powers prohibited. — No corporation v/hicli is not a monied corporation shall by any implicaiion or construction be deemed to possess the power of discount- ing bills, notes or other evidences of debt, of receiving deposits, of buying gold or silver bullion, or foreign coins, or buying or selling bills of exchange, or of issuing bills, notes or other evidences of debt for circulation as money .^ Sec. 624. Powers of supreme court respecting elec- tions. — The supreme court shall upon the application of any person or corporation aggrieved by, or complaining of any election of any corporation, or any proceeding, actor matter touching the same, upon notice thereof to the adverse party, or to those to be affected thereby, forthwith and in a summary way, hear the affidavits, proofs and allegations of the parties, or otherwise inquire into the matters or causes of complaint, and establish the election or order a new election, or make such order and give such relief as right and justice may require, and may in its discretion order issues to be made up in such a manner and form as it may direct, to trj' the respective rights of the parties, touching the matters complained of,^ Sec. 625. May stay proceedings in action collusively brought. — If an action is brought against a corporation by the procurement of its directors, or any of them, to enforce any claim or obligation declared void by law, or to which the corporation has a valid defense, and such action is in the interest or for the benefit of any director, and the corporation has, by their connivance, made default in such action, or con- 1 L. 1890, c. 563, § 13. " Id., § 15. " Id., § 14. FAILURE TO ELECT DIBECTOES. 797 sented to the validity of such claim or obligation, any stock- holder or member of the corporation may apply to the supreme court, upon affidavit, setting forth the facts, for a stay of proceedings in such action, and on proof of the facts in such further manner and upon such notice as the court may direct, it may stay sucli proceedings or set aside and vacate the same, or grant such other relief as may seem proper, and which will not injuriously affect an innocent party, who without notice of such wrong-doing and for a valuable consideration, has acquired rights under such proceedings.^ Sec. 626. Majority to act.— When the corporate powers of any corporation are to be exercised by any particular body or iiumber of persons, a majority of such body or persons, if it be not otlierwise provided by law, shall be a quorum ; and every decision of a majority of such persons duly assembled as a board, shall be valid as a corporate act.^ Sec. 627. Corporation not dissolved by failure to elect directors. — If directors shall not be elected on the day des- ignated in the by-laws, or by-law, the corporation shall not for that reason be dissolved, but the election may be held on any other day, when a meeting for that purpose may be called pursuant to the j)rovisions of this chapter, and every director shall continue to hold his office and discharge its duties until his successor has been elected.^ Sec. 628. Directors to be trustees in case of dissolu- tion. — Upon the dissolution of any corporation, its directors, unless other persons shall be appointed by the legislature, or by some court of competent jurisdiction, shall be the trustees of its creditors, stockholders or members, and shall have full power to settle its affairs, collect and pay outstanding debts and divide among the persons entitled thereto the moneys and other property remaining after payment of debts and necessary expenses.* Sec. 629. Their powers as such trustees.— Such trustees shall have authority to sue for and recover the debts and 1 L. 1890, c. 563, § 16. * Id., § 18. 2 Id., § 17. ■* Id., § 19. 798 EXTENSION OP CORPORATE EXISTENCE. property of the corporation, by their name as such trustees, and shall jointly and severally, be personally liable to its creditors, stockholders, or members, to the extent of its property and effects that shall come into their hands. ^ Sec. 630. Forfeiture for non-user.— If any corporation except a railroad, turnpike, plank-road or bridge corporation, shall not organize and commence the transaction of its busi- ness, or undertake the discharge of its corporate duties within one year from the date of its incorporation, its corporate powers shall cease.^ Sec. 661. Extension of corporate existence.— Any domes- tic corporation at anytime within three years before the expira- tion thereof, may extend the term of its existence beyond the time specified in its original certificate of incorporation, or by law, or in any certificate of extension of corporate existence, by the consent of the stockholders owning two-thirds iu amount of its capital stock, or, if not a stock corporation, by the consent of two-thirds of its members, in and by a certifi- cate signed and acknowledged by them and filed in the offices in which the original certificates of its incorporation were filed, if at all, and, if not, then in the offices where cer- tificates of incorporation are now required by law to be filed, and the officer with whom the same may be filed, shall there, upon record them in the books kept in their respective offices for the record of such certificates, and make a memorandum of such record in the margin of the original certificate in such book, if any, and thereupon the time of existence of such cor- poration shall be extended, as designated in such certificate, for a term not exceeding the term for which it was incor- porated in the first instance.^ Sec. 632. Laws repealed.— Of the laws enumerated in the schedule hereto annexed, that portion specified in the last column is repealed. Such repeal shall not revive a law repealed by any law hereby repealed, but shall include all laws amendatory of the laws hereby repealed.* 1 L. 1890, c. 563, § 20, ' M-, § 22. 2 Id., § 21. 4 Id., § 23. CONSTRUCTION OF ACTS. 79& Sec. 633. Saving clause. — The repeal of a law or any part of it specified in the annexed schedule shall not affect or impair any act done, or right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred prior to May first, eighteen hundred and ninety-one, under or by virtue of any law so repealed, but the same may be asserted, enforced, prosecuted or inflicted, as fully and to the same extent as if such law had not been repealed: and all actions and proceedings, civil or criminal, commenced under or by virtue of the laws so repealed, and pending on April thirtieth eighteen hundred and ninety-one, may be prosecuted and defended to final effect in the same manner as they might under the laws then existing, unless it shall be otherwise specially provided by law.^ Sec. 634, Construction. — The provisions of this chap- ter, so far as they are substantially the same as those of laws existing on April thirtieth, eighteen hundred and ninety-one shall be construed as a continuation of such laws, modified or amended according to the language employed in this chapter, and not as new enactments ; and references in laws not re- pealed to provisions of laws incorporated into this chapter and repealed shall be construed as applying to the provisions so incorporated; and nothing in this act shall be construed to amend or repeal any provision of the Criminal or Penal Code.2 Sec. 635. When to take effect— This chapter shall take effect on May first, eighteen hundred and ninety-one.^ » L. 1890, c. 563, § 24 » M-, § 26. * Id., § 25. 800 SCHEDULE OF LAWS KEPEALED. SCHEDULE OF LAWS EEPEALBD. Eevised Statutes Part 1, chap. 18, title 3 All except sec. 5. Revised Statutes Part 1, chap. 18, title 4 Sections 5 and 6. Laws of CJhapter. SECTIONS. 1796 43 10. 1811 67 4, 6, 8. 1847 210 3. 1848 37 4, 7, 9, 23. 1848 40 4, 7, 9, 26. 1848 265 The last three lines of section 3 and all of sections 4 and 6. 1848 259 4. 1848 319 4, 9. 1850 140 3,48. 1853 117 4, 7, 9, 26. 1853 135 5, 11. 1854 112 The last two lines of section 3. 1854 232 4, 5, 7, 9, 26. 1854 269 4, 6. 1857 29 2. 1857 546 2. 4, 7, 9. 1857 776 6. 8. 1859 168 13. 1861 149 4. 1862 438 3, 4. 1866... 697 5. 1867 937 1. 1867 960 4. 1867 97] 9. 1867 974 3. 1869 917 All after the word "companies" in the last five lines of subdivision 2, to section 2. 1870 135 1 and 2. 1872 146 1. 1872 248 11. 1872 820 12, 16, 18. 1873 397 4, 8, 9. 1873 469 5. 1873 616 4. 1874 143 4, 7, 9, 15. 1874 288 2, 3. . 1875 58 All 1875 267 5, 10. 1875 343 8. 1875 61» 2, 4, 27. 1877 158 1. 1877 228 6. 1878 203 3. 1881 22 1. 1881 468 Last paragraph of section 4. 1882 273 3. 1882 290 All 1884 367 4. SCHEDULE OF LAWS EEPEALED. 801 Laws of Chapter SECTIONS. 1885 489 2. 1885 505 4. 1886 236 6, 8, 9. 1887 317 6. 1887 450 1. 1887 501 3. 1888 293 4, 7, 1888 306 A.11. 1888 391 5. 1888 462 2. o± 802 SHOET TITLE AND LIMITATION OP CHAPTEK. CHAPTER XXXin. THE BUSINESS CORPORATION LAW. Sec. 636. Short title of chapter. Sec. 637. Incorporation. Sec. 638. Kestriction upon commencement of business. Sec. 639. Adoption of by-laws. Sec. 640. Reorganization of existing corporations. Sec. 641, Payment of capital stock. Sec. 642. Liabilities of stockholders. Sec. 643. Extension of business. Sec. 644. Change of place of business. Sec. 645. Taxation. Sec. 646. Place of business; assessment. Sec. 647. May hold stock in certain corporations. Sec, 648. Corporations may consolidate ; agreement therefor. Sec. 649. Agreement to be submitted to stockholders; stock of those ob- jecting appraised and paid for. Sec. 650. Powers of consolidated corporations. Sec. 651. Property, etc., transferred to new corporations. Sec. 652. Eights of creditors. Sec. 653. District steam corporations; must supply steam; penalty; de- posit may be required. Sec. 654. Agent authorized to enter buildings and examine meter; penalty for interference. Sec. 655. When agent may enter and cut off steam. Sec. 656. Laws repealed. Sec. 657. Saving clause. Sec. 658. Construction. Sec. 659. Wh* to take effect. Sec. 626. Short title and limitation of chapter. — THs chapter shall be known as the business corporation law, but no corporation shall be formed under it for the purpose of carrying on any business which might be carried on by a cor- poration formed under any other general law of the state mCOBPOEATION.— KBSTEICTIONS OK BUSINESS. 803- authorizing the formation of corporations for the purpose of carrying on such business.^ Sec. 637. Incorporation.— Five or more persons, a majority of whom shall be citizens and residents of this state, may become a corporation, for the purpose of carrying on any lav/ful busi- ness by making, signing, acknowledging and filing a certifi- cate which shall contain : 1. The name of the proposed corporation : 2. The object for which it is to be formed, including the nature and locality of its business; 3. The amount and description of the capital stock. 4. The number of shares of which the capital stock shall consist, each of which shall not be less than five nor more than one hundred dollars ; 5. The location of its principal business office ; 6. Its duration, which shall not exceed fifty years ; 7. The number of its directors, not less than five nor more than thirteen, who shall each be a stockholder having at least five shares of stock ; 8. The names and post-office addresses of the directors for the first year ; 9. The post-office addresses of the subscribers and a state- ment of the number of shares of stock which each agrees to take in the corporation, the aggregate of which subscriptions shall not be less than one-tenth of the capital stock, and ten. per cent of which must be paid in cash to the directors named in the certificate. There shall be endorsed thereon or annex- ed thereto as a part thereof the affidavit of at least three of the directors, that the requisite amount of stock has been subscribed and the prescribed percentage thereof paid in cash to the directors.^ Sec. 386. Restriction upon commencement of business.. — No such corporation shall engage in the transaction or management of the business, which it is incorporated to conduct, until one-half of its capital stock shall have been subscribed and ten per cent thereof shall have been paid in cash, nor iL. 1890, c. 567, §1. aid. §2. 804 ADOPTION OP BY-LA"WS. until it shall have adopted by-laws for the corporation, and shall have filed in the offices where its certificates of incorpo- ration were filed a further certificate, executed and acknowl- edged by the president and treasurer of the board of directors, to the effect that one-half of the capital stock of the corporation has been in good faith subscribed and ten per cent thereof actually paid in cash, and that the by-laws of the corporation have been adopted and a copy of the subscription list to the stock of the corporation and a copy of the by-laws shall be annexed to such certificate, and the same shall be verified by the oath of the president and treasurer to the effect that the statements contained in it are true.^ Sec. 639. Adoption of by-laws.— The by-laws of the cor- poration shall be adopted at a meeting of stockholders who have subscribed in the aggregate to at least one-half of the capital stock of the corporation and paid ten per cent of such subscription in cash, which meeting shall be called by the directors named in the certificate by serving, at least five days before the meeting, upon every stockholder personally, or by depositing in the post-office, a copy addressed to him at his last known place of residence, postage prepaid, a written notice stating the time, place and object of the meeting. Such by-laws shall provide : 1. The term of the office of the directors, which shall no exceed one year ; 2. The manner of filling vacancies among directors and officers ; 3. The time and place of the annual meeting ; 4. The manner of calling and holding special meetings of the stockholders ; 5. The number of stockholders who shall attend, either in person or by nroxy, in order to constitute a quorum ; 6. The officers of the corporation, always including a pres- ident, a secretary and a treasurer, the manner of their election, iby and among the directors, and their powers and duties ; 7. The manner of electing or appointing inspectors of election ; 1 L. 1890, c. 567, § 3. KEOEGANIZATIOK OF CORPORATIONS. 805 8. The manner of amending the by-laws. No amendment of the by-laws of any such corporation shall take effect until a copy thereof, verified by the president and secretary, shall have been filed in the offices where the original certificates of incorporation were filed.^ Sec. 640. Reorganization of existing corporations. Any corporation heretofore organized, except such corporations as are prohibited by the first section 2 of this chapter from organ- izing thereunder, may reincorporate under this chapter in the following manner: The directors of the corporation shall call a meeting of the stockholders thereof by publishing a notice, stating the time, place and object of the meeting, signed by at least a majority of them, in a newspaper of the county in which its principal business office is situated, for at least three successive weeks, and by serving upon each stockholder at least three weeks before the meeting, a copy of such notice either personally or by depositing it in the post-office, postage prepaid, addressed to him at his last known post-office address. The stockholders shall meet at the time and place specified in the notice, and organize by choosing one of the directors chairman, and a suitable secretary, and shall then take a vote of those present in person or by proxy upon the proposition to reincorporate under this chapter, and if votes representing a majority of all the stock of the corporation shall be cast in favor of the proposition, the officers of the meeting shall exe- cute and acknowledge a certificate of the proceedings, which certificate shall also contain the statements required by section two^ of this chapter, and shall be filed, together with a copy of the by-laws of the corporation, in the offices where certificates of incorporation under this chapter are required to be filed. From the time of such filing such corporation shall be deemed to be a corporation organized under this chapter, and if origi- nally organized or incorporated under a general law of the state, it shall have and exercise all such rights and franchises as it has heretofore had and exercised under the laws pursuant to which it was originally incorporated, and such reorganization shall not in any way affect, change or diminish the existing liabilities of the corporation.* J L. 1890, c. 567, §4. 2 See ^nie, § 636. » See ^nte, § 637. *Id., §5. 806 CAPITAL STOCK — PAYMENT OP. Sec. 641. Payment of capital stock.— The capital stock of every such corporation shall be paid in, one-half thereof within one year and the other half thereof within two yeai-s from its incorporation, or the corporation shall be dissolved, and the directors, within thirty days after the payment of the last installment of the capital stock, shall nfake a certificate of the amount of the capital stock so paid in, which shall be signed aud sworn to by a majority of the directors and filed in the offices where the certificates of incorporation are filed. The dissolution of any such corporation for any cause shall not take away or impair any remedy against it, its stockholders or officers, for any liabilities incurred previous to its dis- solution .^ Sec. 642, Liabilities of stockholders. — Every corporation formed under this chapter may be or become a full liability corporation by inserting a statement in the certificate of incor- poration, that the corporation thereby formed is intended to be a full liability corporation ; and in case of an existing cor- poration, which is not a full liability corporation, it may become such by filing in the offices where certificates of incor- poration are required to be filed, a supplemental certificate 'stating that thereafter the corporation intends to be a full liability corporation, which certificate shall be executed and acknowledged by the president and treasurer of the corpora- tion or by the board of directors, and shall have annexed thereto a copy of a resolution, adopted by a two-thirds vote of the board Of directors, and the written consent of persons owning at least two-thirds of the stock of the corporation, authorizing and consenting to the change of the corporation to a full liability corporation. If the corporation is formed as or becomes a full liability corporation all the stockholders of the corporation shall be severally individually liable to its creditors for all its debts and liabilities, and may be joined as defendants in any action against it. No execution shall issue against any stockholder individually until execution has been issued against the corporation and returned unsatisfied, and all the stockholders shall contribute a proportionate share, 8 L. 1890, c. 567, § 6. EXTENSION OP BUSINESS. 807 according to the number of shares of stock owned by each, of the amount paid by any stockholder on a judgment recovered against him individually for a debt of the corporation, and he may recover from the other stockholders in the corporation in a joint or several action the proper portion due by them and each of them, of the amount paid by him on any such judg- ment. If any corporation formed under this chapter is not or does not become a full liability corporation, the stockholders of the corporation shall be severally individually liable to its creditors to an amount equal to the amount of stock held by them respectively for all debts and contracts made by the cor- poration until the whole amount of its capital stock has been paid in, and until a certificate thereof has been made and filed as hereinbefore required.^ Sec. 643. Extension of business. — Any corporation incor- porated under this article, within one year from the date of its certificate of incorporation, may extend its business beyond that mentioned in its original certificate, providing the pro- posed extension of business shall be of the same general character as that stated in and which might have been properly included in the original certificate, by executing and filing as required for the original certificate, an amended certificate stating the extension of business proposed and that the same has been authorized by a vote of stockholders representing one-half the capital stock, at* a meeting called and held as provided in section two, and a copy of the proceedings of such meeting, verified by the affidavit of at least three of the directors present thereat, shall be filed with such amended certificate.^ Sec. 644. Change of place of business. — Such corporation may change its principal place of business by the consent of the stockholders owning two-thirds of the capital stock by such stockholders executing, acknowledging and filing in the manner required for the certificate of incorporation, a certificate specifying the names of the towns or cities from and to which its business location is to be changed, and signed by the president and two-thirds of the directors, which certificate 1 li. 1890, c 567, § 7! " Id., § 8. 808 TAXATION — PLACE OF ASSESSMENT. shall be published weekly in two papers in the towns or cities from and to which such business location has been removed for the period of three months, and if there are not two news- papers published in such towns or cities, then such publication shall be made in two papers published nearest to such towns or cities.! Sec 645. Taxation. — Every such corporation shall be taxed on all of its property, except real estate, in the town, city or village, where its principal business office is sit- uated.2 Sec, 646. Place of business— Assessment, — No such cor- poration shall be deemed or taken to have a principal office or place for transacting its financial concerns, other than that at which its operations are carried on, unless within the month of May in each year, the president and treasurer, or a majority of the directors, shall execute, under oath, dupli- cate certificates stating the amount of the then capital of the corporation, the portion thereof not invested in real estate, that it has a principal office for transacting its financial con- cerns in a county other than that in which its operations are carried on, and the town or city and county in which such financial office is situated, and that the president and treas- urer and a majority of the directors are then actually resi- dents of the town or city in which such financial office is then located, and filing the same in the clerk's office of the county where the operations of the corporation are carried on, and in the clerk's office of the county in which such finan- cial office shall be. And iu case such duplicate certificates are so made and filed, then during the 3'ear succeeding the first day of June next after such filing, the personal estate of such corporation shall be assessed only in the town, city or ward named in such certificate as that in which such financial offic#is situated.^ Sec. 647. May hold stock in certain corporations. — Any such corporation may hold stock in the capital of any corporation engaged in the business of mining, manufactur- 1 L. 1890, c. 567, § 9. » I^„ § 11. 2 Id., § 10. CONSOLIDATION OF CORPORATIONS. 80» ing or transporting such materials as are requisite in the pros- ecution of the business of such corporation so long as they shall furnish or transport such materials for the use of such corporation, and for two years thereafter, and no longer ; and to hold stock in the capital of any corporation which shall use or manufacture materials mined or produced by such corporation ; and the directors shall have power to pur- chase such stock and to issue stock in payment therefor to the amount of the value thereof, but not to increase the capital stock except in the manner provided by law. When any such corporation shall be a stockholder in any other cor- poration, as herein provided, its president or other officers shall be eligible to the office of director of such corporation, the same as if they were individually stockholders therein.^ Sec. 648. Corporations may Consolidate.— Agreement therefor. — Any two or more corporations organized under the laws of this state for the purpose of carrying on any kind of business of the same or of a similar nature, which a corpora- tion organized under this chapter might carry on, may con- solidate such corporations into a single corporation, as fol- lows : The respective boards of directors of such corpo- rations may enter into and make an agreement, under their respective corporate seals, for the consolidation of such cor- porations prescribing the terms and conditions thereof, the mode of carrying the same into effect, the name of the new corporation, the number of directors who shall manage its affairs, not less than five nor more than thirteen, the names and post-office address of the directors for the first year, the term of its existence, not exceeding fifty years, the name of the town or towns, county or counties, in which its oper- ations are to be carried on, the name of the town or city and county in this state in which its principal place of business is to be situated, the amount of its capital stock, which shall not be larger in amount than the fair aggregate value of the property, franchises and rights of such corporations, and the number of shares into which the same is to be divided, the manner of distributing, such capital stock among the holders- 1 L. 1890, c. 567, § 12. SIO AGKEEMENTS OP CONSOLIDATIOlSr. thereof, and if such corporations, or either of them, shall have been organized for the purpose of carrjdng on any part of its business in any place out of this state, and such new corporation shall propose to carry on any part of its business out of this state, the agreement shall so state, with such other particulars as they may deem necessary. ^ Sec. 649. Agreements to be submitted to stockholders — Stock of those objecting appraised and paid ior. — Such agreement shall be submitted to the stockholders of each of such corporations, at a meeting thereof to be called upon notice of at least thirty days, specifying the time, place and object thereof, and addressed to each at their last known post-ofSce address, and deposited in the post-office, postage prepaid, and published for at least three successive weeks in one of the newspapers in each of the counties of this state in which either of such corporatious shall have its place of business, and if such agreement shall be approved at each of such meet- ings of the respective stockholders separately, by the vote by ballot of the stockholders owning at least two-thirds of the stock, the same sliall be the agreement of such corporations; and a sworn copy of the proceedings of such meetings, made by the secretaries thereof, respectively, and attached thereto, shall be presumptive evidence of the holding and action of such meetings. Such agreement and verified copy of proceed- ings of such meetings shall be made in duplicate, one of which shall be filed in the office of the secretary of state, and the other in the office of the clerk of the county when the princi- pal business office of the new corporation is to be situated in this state, and thereupon such corporations shall be merged into the new corporation specified in such agreements, to be known by the corporate name therein mentioned, and the provisions of such agreement shall be carried into effect as therein proviAd. If any stockholder, not voting in favor of such agreement to consolidate, shall at such meeting, or with- in twenty days thereafter, object to such consolidation and demand payment for his stock, such stockholder or such new corporation, if the consolidation takes effect at any time there- 1 L. 1890, c. 567, § 13. CONSOLIDATED COMPANIES — POWEBS. 811 after, may at any time within sixty days after such meeting apply to the supreme court at any special term thereof held in the district in which any county is situated in which such new corporation may have its place of business, upon at least eight days, notice to the new corporation, for the appointment of three persons to appraise the value of such stock and the court shall appoint three such appraisers, and designate the time and place of their first meeting, with such directions in regard to their proceedings, as shall be deemed proper, and also direct the manner in which paj^ment for such stock shall be made to such stockholder. The court may fill any vacancy in the board of appraisers occurring by refusal or neglect to serve or otherwise. The appraisers shall meet atthe time and place designated, and they or any two of them, after being duly sworn honestly and faithfully to discharge their duties shall estimate and certify the value of such stock at the time of such dissent, and deliver one copy to such new corporation and another to such stockholder if demanded ; the charges and expenses of the appraisers shall be paid by the new corpora- tion. When the new corporation shall have paid the amoun- of such appraisal, as directed by the court, such stockholder shall cease to have any interest in such stock and in the cor- porate property of such corporation, and such stock may be held or disposed of by such new corporation.^ Sec. 650. Powers of consolidated coi-porations. — Such new corporation in addition to the general powers of corpora- tions shall enjoy the rights, franchises and privileges possessed by each of the corporations so consolidated, subject to the re- strictions, liabilities, duties and provisions contained in this article, so far as the same may be applicable to the purposes for which it shall have been organized and expressed in the agreement for consolidation, and may prosecute or carry on any kind of business which each of the consolidating corpora- tions was authorized by law to conduct.^ Sec. 651. Property, etctransf erred to new corporations. ^Upon such consolidation and organization of such new cor- 1 L. 1890, c. 567, § 14. ^ H., § 15. 812 BIGHTS OF CKEDITOES. poration, all and singular the rights, privileges, franchises and interests of every kind belonging to or enjoyed by the cor- porations so consolidated, and every species of property, real, personal and mixed, and things in action thereunto belong- ing, mentioned in such agreement of consolidation, shall be deemed to be transferred and vested in, and may be enjoyed b)% such new corporation, without any other deed or transfer; and such new corporation shall hold and enjoy the same, and all rights of property, privileges, franchises and interests in the same manner and to the same extent as if the several corporations so consolidated had continued to retain the title and transact the business of such corporations, and the title to real and personal estate and rights and privileges acquired and enjoyed by either of the corporations shall not revert or be impaired by such consolidation, or anything relating thereto .1 Sec. 652. Rights of creditors.— The rights of creditors of any corporation that shall so be consolidated thall not in any manner be impaired, nor any liability or obligation for the payment of any money due or to become due to any person or persons, or any claim or demand for any cause existing against any such corporation or against any stockholder there- of, be released or impaired by any such consolidation : but such new corporation shall succeed to and be held liable to pay and discharge all such debts and liabilities of each of the corporations consolidated in tlie same manner as if such new corporation had itself incurred the obligation or liability to pay such debt or damages ; and the stockholders of the respective corporations consolidated shall continue, subject to all the liabilities, claims and demands existing against them as such, at or before the consolidation ; and no action or proceeding then pending before any court or tribunal in which any corporation thft maybe so consolidated is a party, or in which any such stockholder is a party, shall abate or be discontinued by reason of such consolidation, but maybe prosecuted to final judgment, as though no consolidation had been entered into ; or such new corporation may be substituted as a party in place 1 L. 1890, c. 567, § 16. STEAM COMPANIES — ^DUTIES. 813 of any corporation so consolidated, by order of the court in which such action or proceeding may be pending.^ Sec. 653. Bistrict steam corporations — must supply steam penalty—deposit may be required. — Any corporation now or hereafter incorporated for the purpose of supplying steam to consumers from a central station or stations through pipes laid in the public streets, shall be known as a district steam corporation, and upon the application in writing of the owner or occupant of any building or premises, within one hundred feet of any street main laid down by any such corporation, and payment by him of all money due from him to it,' such corporation shall supply steam as may be required for heat- ing such building or premises, notwithstanding there may be rent or compensation in arrears for steam supplied, or for meter, pipe or fittings furnished to a former occupant thereof, unless such owner or occupant shall have undertaken or agreed with the former occupant to pay or to exonerate him from the payment of such arrears, and shall refuse or neglect to pay the same ; and if, for the space of twenty days after such application, and the deposit, if required, of a reasonable i>\\m to cover the cost of connection and two months' steam supply, the corporation shall refuse or neglect to supply steam AS required, it shall forfeit to such applicant the sum of ten dollars and the further sura of five dollars for every day thereafter during which such refusal or neglect shall continue ; but no such corporation shall be required to lay a service pipe for the purpose of supplying steam to any applicant, where the ground in which such pipe is required to be laid shall be frozen, or otherwise present serious obstacles to lay- ing the same; nor unless the applicant, if required, shall deposit in advance with the corporation a sum of money suffi- cient to pay for two months' steam supply and the cost of ihe necessary connections and of the erection of a meter and sucli other special apparatus as are required for use in con- nection with such steam supply, nor unless the applicant shall provide the space and right of way necessary for the erec- tion, maintenance and use of such connections and apparatus, 1 L. 1890, c. 567, § 17. 814 STEAM COMPANIES — AGENTS, ETC. and signify his assent in -writing to the reasonable regula- tions of the corporation with reference to the supply of steam to consumers.^ Sec. 654. Agent authorized to enter buildings and ex- amine meter —penalty for Interference. — Any such corpora- tion may make an agreement with any of its customers,by which any of its officers or agents shall be authorized at all reasonable times to enter any dwelling, store, building, room or place supplied with steam by such corporation and occupied by such customer, for the purpose of inspecting and examining the: meters, devices, pipes, fittings and appliances for supplying or regulating the supply of steam, and for ascertaining the quantity of steam consumed, or the quantity of water result- ing from the condensation of steam consumed. Every such agreement shall further provide that such officer or agent shall exhibit his written authority if requested by the occupant of such dwelling, store, building, room or place. Any person who shall directly or indirectly prevent or hinder such officer or agent from entering such dwelling, store, building, roon^ or place, or from making such inspection or examination, in violation of such agreement shall forfeit to the corporation the sum of twenty-five dollars for each offense.^ Sec. 655. When agent may enter and cut off steam.— If any person or persons, corporation or association supplied with steam by any such corporation, shall neglect or refuse to pay the rent or remuneration for such steam, or for the meter, device, pipes, fittings or appliances, let by such corporation for supplying steam, or for ascertaining the quantity of steam consumed, or the quantity of water resulting from the con- densation of the steam consumed, agreed upon or due for the same, as required by his, their or its contract with such cor- poration, the latter may thereupon stop and prevent the steam from entering the premises of such person, persons, corpora- tion or association, so neglecting or refusing to pay such rent or remuneration, and may also in any case, in which a person is liable to pay a forfeiture, or to a fine or imprisonment, by reason of any act to or towards such corporation or its prop- 1 L. 1890, c. 567, § 18. = H., § 19. SAVING CLAtrSE — CONSTIITJCTION OF ACTS. 815 erty for which such forfeiture, fine or penalty is imposed by law, stop and prevent the steam from entering the premises of the person so liable, or if such pei'son be an officer or agent of any corporation or association, stop and prevent the steam from entering the premises of siich corporation or association. In all cases in which such corporation is authorized to stop and prevent the steam from entering any premises it maj^, by its officers, agents, or workmen, enter into or on such prem- ises between the hours of eight o'clock in the forenoon and six o'clock in the afternoon and cut off, disconnect, seperate and carry away any meter, device, pipe, fitting, or other proper- ty of the corporation ; and may cut off, disconnect and sepa- rate any meter, device, pipe or fitting, whether the property of the corporation or not, from the mains or pipes of such cor- poration.^ Sec. 656. Laws repealed. — Of the laws enumerated in the Schedule hereto annexed, that portion specified in the last column is repealed. Such repeal shall not revive a law re- pealed by any law hereby repealed, but shall include all laws amendatory of the laws hereby repealed.^ Sec. 657. Saving Clause.— The repeal of a law or any part of it specified in the annexed schedule shall not affect nor im- pair any act done, or right accruing, accrued or acquired, or lia- bility, penalty, forfeiture or punishment incurred prior to May first, eighteen hundred and ninety-one under or by virtue of any law so repealed, but the same may be asserted, enforced, prosecuted or inflicted, as fully and to the same extent, as if such law had not been repealed, and all actions and proceed- ings, civil or criminal, commenced under or by virtue of the laws so repealed and pending on April thirty, eighteen hun- dred and ninety-one, may be prosecuted and defended to final effect, in the same manner as they might under the laws then existing, unless it shall be otherwise specially provided by law.^ Sec. 658. Construction.— The provisions of this chapter, so far as they are substantially the same as those of laws existing I L. 1890, c. 567, § 20. " M-, § 21. ' M., § 22. SIQ LAWS EBPEALED. on April thirty, eighteen hundred and ninety-one, shall be construed as a continuation of such laws,modified or amended according to the language employed in this chapter, and not as new enactments ; and references in laws not repealed to provisions of laws incorporated into this chapter and repealed shall be construed as applying to the provisions so incorporated ; and nothing in this chapter shall be construed to amend or repeal any provision of the Criminal or Penal Code.^ Sec. 659. When to take effect.— This chapter shall take effect on May first, eighteen hundred and ninety one.^ SCHEDTJIjB of laws BEPBAIjED. Laws of Chapter. SECTIONS. 1811 67 1 and 2. 1815 47 All. 1815 202 All. 1816 58 All. 1817 223 All. 1818 67 All. 1819 102 All. 1821 14 All. 1848 40 1 and 2. 1851 14 All. 1853 117 1 and 2. 1855 301 All. 1857 29 1 and 3. 1861 170 All. 1863 63 All. 1864 337 All. 1864 517 1. 1865 234 All. 1865 307 All. 1866 371 All. 1866 838 All. 1867 960 1, 2, 3, 5, 6 and 7. 1869 706 All. 1871 481 All. 1871 535 All. 1872 248 1, 2, 4, 5, 6 and 12. 1872 820 1, 2, 3, 6, 6, 7, 8, 11, 17 and 19. 1873 61« 1, 2, 3, 5 and 6. 1873 814 All. 1874 143 1, 2, 12, 16, 17 and 18. 1875 88 All. 1875 113 All. 1875 365 All. 1875 611 1, 3, 6, 7, 8, 9, 30 to 39 (both inclusive). 1 L. 1890, c. 657, § 23. Id., §24. LAWS REPEALED. soHEDTJiiE OB" LAWS EBPBALBD — Continued. 817 Laws of Chapter SECTIONS. 1878 ■ 334 All. 1880 85 All. 1880 241 All. 1880 263 AU. 1881 351 All 1881 472 All 1881 650 All. 1882 273 1. 1882 309 All. 1883 71 All. ::,.'Tft. 1883 240 All. 1884 267 All. 1884 367 1,2, 3, 5, 6 and 7. 1885 84... All. 1885 535 All. 1885 549 All. 1886 579 All. 1886 592 All. 1887 486 All. 1888 313 1. t 1888 447 All. 1889 57 All. 1889 519 All. 52 CHAPTER XXXIV. THE STOCK CORPORATION LAW. ASTIOLE 1. General powers ; re-organization (§§ 660-666). 2. Directors and officers ; their election, duties and liabilities (§§ 667-678). 3. Stock ; stockholders, their rights and liabilities (§§ 679 to 697). 4. Miscellaneous provisions (§§ 698-701). • ARTICLE I. GENERAL POWERS ; REORGANIZATION. Sbo. 660. Short title. Seo. 661. May borrow money and mortgage property. Sko. 662. Purchasers at sale of corporate property and franchise may become a corporation. Sbo. 663. Contents of plan of agreement. Seo. 664. Sale of property — possession of receiver and suits against him. Seo. 665. Stockholder may assent to plan of readjustment. Seo. 666. Combinations prohibited. Sec. 660. Short title. — This chapter shall he known as the stock corporation law, but shall not apply to monied cor- porations.i Sec. 661., May Borrow Money and Mortgage Property. — In addition to the powers conferred by the general corpo- ration law, every stock corporation shall have power to borrow money or contract debts, when necessary for the transaction of its business, or for the exercise of its corporate rights, » L. 1890, 0. 564, § 1. PURCHASERS TO BECOME CORPORATIONS. 819- privileges or franchises, or for any other lawful purpose of" its incorporation ; and may issue and dispose of its obligations for any amount so borrowed, and may mortgage its property and franchises to secure the payment of such obligations or of any debt contracted for the purposes herein specified ; and. the amount of the obligations issued and outstanding at any one time secured by such mortgages, excepting mortgages: given as a consideration for the purchase of real estate, and mortgages authorized by contracts made prior to the time when this act shall take effect, shall not exceed the amount of its paid-up capital stock, or an amount equal to two-thirds of the value of its corporate property at the time of issuing the obligations secured by such mortgages, in case such two- thirds value shall be more than the amount of such paid-up capital stock. No such mortgages excepting purchase-money mortgages shall be issued without the written consent, duly acknowledged, of the stockholders owning at least two-thirds of the stock of the corporation, and such consent shall be filed and recorded in the office of the clerk or register of the county where it has its principal place of business. When authorized by such consent the directors, under such regulations as they may adopt, may confer on the holder of any debt or obliga- tion secured by such mortgage the right to convert the prin- cipal thereof, after two and not more than twelve years from the date of the mortgage, into stock of the corporation ; and if the capital stock shall not be sufficient to meet the conver- sion when made, the stockholders shall, in the manner herein provided, authorize an increase of capital stock sufficient for that purpose.^ Sec. 663. Purchasers at sale of corporate property and franchise may become a corporation. — When the property and franchises of any domestic stock corporation shall be sold by virtre of any mortgage or deed of trust, duly executed by it or pursuant to the judgment or decree of a court of compe- tent jurisdiction, or by virtue of any execution issued there- on, and the purchaser at such sale shall acquire title to the same in the manner prescribed by law, he may associate with. 1 L. 1890, e. 564, § 2. 820 CONTENTS OF PLAN OR AGKEEMENT. him any number of persons, not less than the number required by law for the incorporation of such corporation, a majority •of whom shall be citizens and residents of this state, and they may become a corporation, and take and possess the property and franchises thus sold, and which were at the time of sale possessed by the corporation whose property shall have been so sold, upon making, acknowledging and filing in the offices where certificates of incorporation are required by law to be filed, a certificate in which they shall describe by name and reference to the law under which it was organized, the cor- poration whose property and franchises they have acquired, and the court by whose authority the sale had been made, with the dateof the judgment or decree authorizing or direct- ing the same, and a brief description of the property sold, and •also the following particulars : 1. The name of the new corporation intended to be formed by the filing of such certificate. 2. The maximum amount of its capital stock and the num- ber of shares into which it is to be divided, specifying the classes thereof, whether common or preferred, and the amount of and rights pertaining to each class. 3. The number of directors, not less nor more than the number required by law for the old corporation, who shall manage the affairs of the new corporation, and the names and post-office address of the directors for the first year. 4. Any plan or agreement, which may have been entered into at or previous to the time of sale, in anticipation of the formation of the new corporation, and pursuant to which such purchase was made. Such corporation shall be vested with and be entitled to exercise and enjoy all the rights, privi- leges and franchises, which at the time of such sale belonged to, or werg vested in the corporation last owning the prop- erty sold, or its receiver, and shall be subject to all the pro- visions, duties and liabilities, imposed by law on such corpo- Tations.^ Sec. 663. Contents of plan or agreement.— At or pre- vious to the sale the purchasers thereat, or the persons for 1 L. 1890, c. 564, § 3. SALE OP PEOPBKTY — POSSESSION OP RECEIVER. 821 whom the purchase is to be made, may enter into a plan or agreement, for or in anticipation of the readjustment of the respective interests therein of the mortgage creditors and stockholders of the corporation owning such property and franchises at the time of sale, and for the representation of such interests of creditors and stockholders in the bonds or stock of the new corporation to be formed, and may therein regu- late voting by the holders of the preferred and common stock at any meeting of the stockholders, and by the holders and owners of any or all of the bonds of the corporation foreclosed, or of the bonds issued or to be issued by the new corporation, and such right of voting by bondholders shall be exercised in such manner, for such period, and upon such conditions, as shall be therein described. Such plan or agreement must contain suitable provision for the bond- holders voting by proxy, and must not be inconsistent with the laws of the state and shall be binding upon the corpora- tion, until changed as therein provided, or as otherwise pro- vided by law. The new corporation when duly organized, pursuant to such plan or agreement, and to the provisions of law, may issue its bonds and stock in conformity with the provisions of such plan or agreement, and may at any time within six months after its organization, compromise, settle or assume the payment of any debt, claim or liability of the former corporation upon such teirms as may be lawfully approved by a majority of the agents or trustees intrusted with the carrying out of the plan or agreement of reorganiza- tion, and may establish preferences in respect to the payment of dividends in favor of any portion of its capital stock and may divide its stock into classes, but the capital stock of the new corporation shall not exceed in the aggregate, the max- imum amount of stock mentioned in the certificate of incor- poration, nor shall the bonds issued by it exceed in the aggre- gate the amount which a corporation is authorized by the provisions of this article to issue. ^ Sec. 664. Sale of property— possession of receiver and snits against liim — The supreme court may direct a sale. 1 L. 1890, c. 564, § 4. 822 BBADJUSTMBNT — CONSENT TO. of the whole of the property, rights and franchises covered by the mortgage or mortgages, or deeds of trust foreclosed at any one time and place to be named in the judgment or order, either in case of the non-payment of interest only, or of both the principal and interest, due and unpaid and secured by any such mortgage or mortgages or deeds of trust. Neither the sale nor the formation of the new corporation shall interfere with the authority or possession of any receiver of such property and franchises, but he shall remain liable to be re- moved or discharged at such time as the court may deem proper. No suit or proceeding shall be commenced against such receiver unless founded on wilful misconduct or fraud in his trust after the expiration of sixty days from the time of his discharge ; but after the expiration of sixty days the new cor- poration shall be liable in any action that may be commenced against it, and founded on any act or omission of such receiv- er, for which he may not be sued, and to the same extent as the receiver, but for this section would be or remain liable, or to the same extent that the new corporation would be, had it done or omitted the acts complained of.^ Sec. 667. Stockholders may assent to plan of readjust- ment. — Every stockholder in any corporation, the franchises and property whereof shall have been thus sold, may assent to the plan of readjustment and reorganization of interests pursuant to which such franchises and property shall have been purchased at any time within six months after the organ- ization of the new corporation, and by complying with the terms and conditions of such plan become entitled to his pro rata benefits therein. The commissioners, corporate authori- ties or proper officers of any city, town or village, who may hold stock in any corporation, the property and franchises whereof shall be liable to be sold, may assent to any plan or agreement of reorganization which lawfully provides for the formation of a new corporation, and the issue of stock therein to the proper authorities or officers of such cities, towns or villages in exchange for the stock of the old or former cor- poration by them respectively held at par. And such com- 1 L. 1890, c. 564 § 5. COMBINATIONS PROHIBITED. 823 missioners, corporate authorities or other proper officers may assign, transfer or surrender the stock so held by them in the manner required by such plan, and accept in lieu thereof the stock issued by such new corporation in conformity there- with.^ Sec. 666. Gombiuation prohibited. — No stock corporation shall combine with any other corporation for the prevention of competition.^ 1 li. 1890, c. 564, § 6. " Id., § 7. ARTICLE II. DIKECTOKS AND OFFICERS; THEIR ELECTION, DUTIES AND LIABILITIES. Sec. 667. Directors. Sec. 668. Change of number of directors. Sec. 669. When acts of directors void. Sec. 670. Liability of directors for dividends not made from surplus profits. Sec. 671. Liability of directors for unauthorized debts and over issue of bonds. Sec. 672. Liability for loans to stockholders. Sec. 673. Transfers of stock by stockholder Indebted to corporation. Sec. 674. Officers. Sec. 675. Oath of inspectors. Sec. 676. Books to be kept. Sec. 677. Annual report. Sec. 678. False certificates, liability for. Sec. 667. Directors. — The affairs of every stock corpora- tion shall be managed by a board of directors, consisting of the number stated in the certificate of incorporation, a ma- jority of whom shall be citizens of this state, and who shall be chosen annually, from the stock-holders, at the time and place fixed by the by-laws of the corporation, by a majority of the votes of the stockholders voting at such election. Vacancies therein shall be filled in the manner prescribed in the by-laws, and if a director shall cease to be a stockholder his ofiice shall become vacant. Notice of the time and place of holding any election of directors shall be given, by publi- cation thereof, at least once in each week for four successive weeks, immediately preceding such election, in a newspaper published in the county where such election is to held, and in such other manner as may be prescribed in the by-laws.^ 1 L. 1890, c. 564, § 20. DIKBCTOKS — INCEEASE OR EEDTJCTION. 825 Sec. 668- How number of directors may be increased or reduced. — The number of directors of any stock corporation may be increased or reduced, but not above the maximum or below the minimum number prescribed by law, when the stockholders, owning a majority of the stock of the corpora- tion shall so determine, at a meeting to be held at the usual place of meeting of the directors, on thirty days notice in writing to each stockholder of record. Such notice shall be served personally or by mail directed to each stockholder at his post-oiiBce address. The proceedings of such meeting shall be entered in the minutes of the corporation, and a transcript thereof verified by the president and secretary of the meeting shall be filed in the offices where the original certificates of incorporation were filed.^ Sec. 669. When acts of directors void. — When the direct- ors of any corporation for the first year of its corporate exis- tence shall hold over and continue to be directors after the first year, because of their neglect or refusal to adopt the by-laws required to enable the stockholders to hold the annual elec- tion for directors, all their acts and proceedings while so hold- ing over, done for and in the name of the corporation, designed to charge upon it any liability or obligation for the services of any such director, or of any officer, or attorney, or counsel appointed by them, and every such liability or obligation shall be held to be fraudulent and void.^ Sec. 670. Liability of directors for dividends not made from surplus profits. — The capital stock of a stock corpora- tion shall be deemed impaired when the value of its property and assets, after deducting the amount of its debts and liabiU ities, shall be less than the amount of its paid up capital stock. No dividends shall be declared or paid by any stock corpora, tion, except from the surplus profits of its business, nor when its capital stock is or will be impaired thereby, and no such corporation shall divide or withdraw or in any way pay to its- stockholders, or any of them, any part of its property and assets, so as to reduce the value thereof, after deducting the- amount of its debts below the amount of its capital stock or » L. 1890, c. 564, § 21. 2 Id., § 22. 826 ONATJTHOEIZED DEBTS — LIABILITY OP DIEECTOES. reduce its capital stock except in the manner prescribed by law. Every vote of the board of directors of any such corpo- ration declaring a dividend shall be taken by ayes and noes, to be entered and recorded in the minutes of the proceedings of the board, which shall be open to tjie inspection of every stockholder and creditor of the corporation daily during the usual hours of business. If the directors of any such corpo- ration shall declare or pa}' any dividend, or permit the capital stock to be impaired, in violation of the provisions of this section, the directors voting in favor of declaring such dividend, or making any such payment which would impair its capital stock, shall jointly and severally be personally liable for all the debts of the corporation then existing, and there- after contracted, while they shall respectively continue in •office.! Sec. 671. Liability of directors for unauthorized debts and over issue of bonds. — No stock corporation shall create any debt not secured by mortgage in excess of the amount of its paid up capital stock, and the directors creating or consent- ing to the creation of any such debt shall be personally liable therefor to the creditors of the corporation. If bonds or other obligations of the corporation, secured by mortgage, are issued in excess of the amount authorized by law, or in violation of law, the directors voting for such over issue, or unlawful issue, shall be personally liable to the holders of the bonds or other obligations illegally issued for the amount held by them, and to all persons sustaining damage by such illegal issues for any damage caused thereby.^ Sec. 673. Liability of directors for loans to stockholders, — No loans of monej^s shall be made by any stock corporation or by any officer thereof out of its funds to any stockholder therein, nor shall any such corporation or officer discount any note or other evidence of debt, or receive the same in payment of any installment, or any pai't thereof, due or to become due on any stock in such corporation, or receive or discount any note, or other evidence of debt, to enable any stockholder to ■withdraw any part of the money paid in by him on his stock; 1 h. 1890, c. 564, § 23. a Id., § 24. OFFICEES — INSPECTORS OF ELECTIOK. 827 -and in case of the violation of any provision of this section^ the officers or directors making such loan, or assenting thereto or receiving or discounting such notes or other evidences of debt, shall, jointly and severally, be personally liable to the extent of such loan and interest, for all the debts of the corporation contracted before the repayment of the sum loaned, and to the full amount of the notes or other evidences of debt so received or discounted with interest from the time such liability accrued.^ Sec. 673. Transfers of stock by stockholder indebted to corporation. — If a stockholder shall be indebted to the corporation, the directors may refuse to consent to a transfer of his stock until such indebtedness is paid, provided a copy of this section is written or printed upon the certificate of stock.2 Sec 674. Officers. — The directors may appoint from their number a president, and from the stockholders a secretary and treasurer and may appoint such other subordinate officers, agents and employes, as the by-laws may designate, or they may direct, who shall respectively have such powers and per- form such duties in the management of the property and affairs of the corporation, subject to the control of the directors, as may be prescribed by them in the by-laws or otherwise ; and the directors may require any such officer, agent or employe to give security for the faithful performance of his duties, and may remove him at pleasure.^ Sec. 675. Inspectors and their oath.— The inspectors of election of every stock corporation shall be appointed in the manner prescribed in the by-laws, but the inspectors of the first election of dijectors, and of all previous meetings of the stockholders, shall be appointed by the board of directors named in the certificate of incorporation. The inspectors appointed to act at any meeting of the stockholders, shall, before entering upon the discharge of their duties, be sworn to faithfully execute the duties of inspector of such meeting with strict impartiality, and according to the best of their ability, 1 L. 1890, c. 564, § 25. "Id-, § 27. 2 Id., § 26. 828 BOOKS TO BE KEPT. aud the oath so taken shall be subscribed by them and immediately filed in the office of the clerk of the county in which such election or meeting shall be held, with a certificate of the result of the vote taken thereat.-' Sec. 676. Books to be kept. — The directors of every stock corporation shall keep at its principal ofiice or place of busi- ness correct books of accounts of all its business and transac- tions ; and shall cause its treasurer or secretary to keep a book containing the names, alphabetically arranged, of all persons who are, or within six years liave been, stockholders of the corporation, showing their places of residence, the number of shares of stock held by them respectively, the time when they, respectively, became the owners thereof, and the amount- actually paid thereon ; which books shall daily, during busi- ness hours, be opened for the inspection of stockholders and creditors of the corporation, and their personal representatives at such principal business office ; and every such stockholder, creditor or representative may make extracts from such books ; and no transfer of stock shall be valid as against the corpo- ration, its stockholders and creditors for any purpose, except to render transferee liable for the debts of the corporation according to the provisions of this chapter, until it shall have been entered in such book as required by this section, by an entry showing from and to whom transferred. .Such latter book shall be presumptive evidence of the facts therein so stated in favor of the plaintiff, in any action or proceeding against such corporation or any of its officers, directors or stockholders. Every corporation that shall neglect or refuse to keep or cause to be kept such books, or to keep them open for inspection as herein required, shall forfeit to the people the sum of fifty dollars for every day it shall so neglect or refuse. If any officer or agent of any such corporation shall neglect or refuse to make any proper entry in such book or books> or shall neglect or refuse to exhibit the same, or allow them to be inspected, and extracts taken therefrom, as provided in this section, the corporation and such officer and agent shall for- feit and pay to the party injured a penalty of fifty dollars for 1 L. 18S0, c. 564, § 28. ANNUAL KEPOET. 829 every such neglect or refusal, and all damages resulting to him therefrom. 1 Sec. 677. Annual Report. — Every stock corporation, ex- cept railroad corporations, shall annually, within twenty days after the first day of January, or, if doing business without the United States, within twenty days after the first day of April, make a report as of the first day of January, which shall state the amount of capital stock and the proportion actually paid in, the amount and in general terms the nature of its existing assets and debts, and of its receipts and expenditures during the year, the names of its then stockholders, and the dividends, if any, declared since its last report ; which report shall be signed by the president and a majority of its direc- tors, and verified by the oath of the president and treasurer, and filed in the office of the secretary of state and in the office of the county clerk of the county where its principal business office may be located. If such report is not so made aud filed, all the directors of the corporation shall jointly and severally, be personally liable for all the debts of the corporation then existing and for all contracted before such report shall be made. No director shall be liable for the failure to make and file such report if he shall file with the secretary of state, within thirty days after the first day of January, or the first day of April, as the case may be, a verified certificate, stating that he has endeavored to have such report made and filed, but that the officers or a majority of the directors have refused and neglected to make and file the same, and shall append to such certificate a report con- taining the items required to be stated in such annual report so far as they are within his knowledge or are obtainable from sources of imformation open to him, and verified by him to be true to the best of his knowledge, information and belief.^ Sec. 678. False certificates — Liability for. — Ifanycertifi cate or report made, or public notice given, by the officers or di- rectors of a stock corporation shall be false in any material re- presentation the officers and directors signing the same shall, jointly and severally, be personally liable for all the debts of the corporation contracted while they are officers or directors thereof.^ 1 L. 1890, c. 564, § 29. ^ Id., § 30. = Id., § 31. ARTICLE III. STOCK ; STOCKHOLDERS, THEIR EIGHTS AND LIABILITIBS. Sec. 679. Stock, personal estate, corporation not to purchase. Sec. 680. Subscriptions to stock. Sec. 681. Must be paid for in cash, exceptions. Sec. 682. When payment of subscriptions to be made. Sec. 683. How stock may be increased or reduced. Sec. 684. Notice thereof to be given. Sec. 685. Meeting of stockholders for that purpose. Sec. 686. Exchange of preferred for common stock. Sec. 687. Certain transfers of stock and property prohibited. Sec. 688. Stockholders may pay proportional share of defaulted bonds. Sec. 689. May compel execution of duplicate of lost certificate. Sec. 690. Proceedings in such cases. Sec. 691. May require statement of financial condition to be rendered. Sec. 692. May call meeting to elect directors. Sec. 693. How stockholders may vote. Sec. 694. When to vote at special election of directors. Sec. 695. When transfer agent of foreign corporation to exhibit books. Sec. 696. Liabilities of stockholders. Sec. 697. Limitation of liabilities. Sec. 679. Stock— Personal estate— Corporation not to purchase. — The stock of every corporation shall be deemed personal property, and shall be represented by a certificate prepared by the directors and signed by the president and treasurer and sealed with the seal of the corporation, and shall be transferable in the manner prescribed in this chapter and in the by-laws, but no share shall be transferable until all previous calls thereon shall have been fully paid in, and no cor- portion shall use any of its funds in the purchase of any stock of its own or any other corporation, unless the same shall have been bona fide pledged, hypothecated or transferred to it, by way of security for, or in satisfaction or part satisfaction, of a, debt previously contracted in the course of its business, or shall ST7BSCKIPTIONS TO STOCK. 831 be purchased by it at sales upon judgments, orders or decrees ■vrhich shall be obtained for such debts, or in the prosecution thereof. But any domestic corporation, transacting business in this state and also in other states, or foreign countries, may invest its funds in the stocks, bonds or securities of other corporations, owning lands in this state or such states, if divi- dends have been paid on such stocks continuously for three years immediately before such loans are made, or if the inter- est on such bonds or securities is not in default ; and such stock, bonds or securities shall be continuously of a market value twenty per cent greater than the amount loaned or con- tinued thereon.''' Sec. 680. Subscriptions to stock. — If the whole capital stock shall not have been subscribed at the time of filing the certificate of incorporation, the directors named in the certifi- cate may open books of subscription to fill up the capital stock in such places, and after giving such notices as they may deem expedient, and may continue to receive subscrip- tions until the whole capital stock is subscribed. At the time of subscribing every subscriber shall pay to the directors ten per cent upon the amount subscribed by him in money, and no subscription shall be received or taken without such payment, except as provided in the next section.^ Sec. 681. Mpistbepaid for in cash— Exceptions.— No cor- poration shall issue either stock or bonds except for money, labor done, or property actually received for the use and lawful purposes of such corporation, at its fair value, and all stock issued in violation of the provisions of this section shall be void.^ Sec. 682. Wlien payment of subscriptions to be made — Subscriptions to the capital stock of a corporation shall be paid at such times and in such installments as the board of directors may by resolution require. If default shall be made in the payment of any installment as required by such resolu- tion, the board may declare the stock and all previous pay- ments thereon forfeited for the use of the corporation, after 1 L. 1890, c. 564, § 40. » Id., § 43. » Id,, § 41. 832 STOCK — INCKEASB OR EEDTTCTION OP the expiration of sixty days from the service, on the default- ing stockholder personally, or by mail directed to him at his post-ofSce address, of a written notice requiring him to make payment within sixty days from the service of the notice at a place specified therein, and stating that, in case of failure to do so, his stock and all previous payments thereon will be forfeited for the use of the corporation.^ Sec. 683. Increase or reduction of capital stock. — Any domestic corporation may increase or reduce its capital stock in the manner herein provided. If increased, the stockholders shall be subject to the same liabilities with respect to the ad- ditional capital, as are provided by law in relation to the original capital ; if reduced, the amount of its debts and lia- bilities shall not exceed the amount of its reduced capital, and the owner of any stock shall not be relieved from any lia- bility existing prior to such reduction.^ Sec. 684. Notice thereof to be, given. — Every such in- crease or reduction must be authorized by a vote of the stock- holders owning at least two-thirds of the stock of the corpo- ration, taken at a meeting of the stockholders specially called for that purpose. Notice of the meeting, stating the time, place and object, and the amount of the increase or reduction proposed, signed by a majority of the directors, shall be pub- lished once a week, for at least three successive weeks, in a newspaper in the county where its principal business oflSce is located, if any is published therein, and a copy of such notice shall be personally served upon or duly mailed to each stock- holder or member at his post-office address at least three weeks before the meeting.^ Sec. 865. Meeting of stockholders for that purpose. — If, at the time and place specified in the notice, the stockholders shall appear in person or by proxy, in numbers representing at least two-tnirds of all the shares of stock, they shall or- ganize by choosing from their number a chairman and secre- tary, and take a vote of those present in person or by proxy, and if a sufficient number of votes shall be given in favor of 1 L. 1890, c. 564, § 43. 2 Id., § 44. » Id., § 45. EXCHAIfGE OF PEEFEEKED STOCK. 833 such increase or reduction, a certificate of the proceedings, showing a compliance with the provisions of this chapter, the amount of capital actually paid in, the whole amount of the debts and liabilities of the corporation, and the amount of the increased or reduced capital stock, shall be made, signed, verified and acknowledged by the chairman and secretary of tlie meeting, and filed in the office of the clerk of the county where its principal place of business shall be located, and a duplicate thereof in the office of the secretary of state. In case of a reduction of the capital stock, except of a railroad corporation, such certificate shall have endorsed thereon the approval of the comptroller, to the effect that the reduced capital is sufficient for the proper purposes of the corporation, and is in excess of its debts and liabilities, and that the actual market value of the stock before reduction was less than its par value ; and in case of the increase or reduction of the capital stock of a railroad corporation the certificate shall have indorsed thereon the approval of the board of railroad com- missioners ; and when the certificate herein provided for has been filed, the capital stock of such corporation shall be in- creased or reduced, as the case may be, to the amount speci- fied in snch certificate. The proceedings of the meeting at which such increase or reduction is voted shall be entered upon the minutes of the corporation. If the capital stock is reduced the amount of capital over and above the amount of the reduced capital shall be returned to the stockholders pro- rata at such times and in such manner as the directors shall determine.^ Sec. 686. When preferred may be exchanged for com- mon stock. — Every domestic corporation having preferred and common stock may, upon the written request of the holder of any preferred stock, by a two-thirds vote of its directors, exchange the same for common stock, and issue cer- tificates for common stock therefore share for share, or upon such other valuation as may have been agreed upon in the scheme for the organization of such corporation, or the issue 1 L. 1890, c. 564, § 46. 63 834 VOID TEANSFEES OF STOCK. of such preferred stock ; but the total amount of capital stock shall not be increased thereby.^ Sec. 687. Certain transfers of stock and property pro- hibited. — No corporation which shall have refused to pay any of its notes or other obligations whei^ due, in lawful money of the United States, nor any of its officers or directors, sliall assign any of its property to any of its officers, directors or stockholders, directly or indirectly, for the payment of any debt; and no officer, director or stockholder thereof shall make any transfer or assignment of its property, or of any stock therein, to any person in contemplation of its insolvency ; and everysuch transfer or assignment to such officer, director or other person, or in trust for them or for their benefit, shall be void.2 Sec. 688. Stockholders may pay proportional share of de- faulted bonds. — Whenever default shall be made by any cor- poration in the payment of principal or interest of any of its bonds, secured by mortgage or deed of trust of its property, any stockholder may at any time during the pendency of the foreclosure of such mortgage or deed of trust and before the sale thereunder pay to the mortgagees or grantees in such mortgage or deed, for the use and benefit of the holders of such bonds, a sum equal to such proportion of the amount due and secured to be paid by such mortgage or deed, as his stock in such corporation shall bear to its whole capital stock, and on making such payment he shall to the extent thereof be- come and be interested in such mortgage or deed and pro- tected thereby.* Sec. 679. May compel execution of duplicate of lost cer- tiiicate. — The owner of a lost or destroyed certificate of stock,, if the corporation shall refuse to issue a new certificate in place thereff, may apply to the supreme court, at any special term held in the district where he resides, for an order re- quiring the corporation to show cause why it should not be required to issue a new certificate in place of the one lost or » L. 1890, c. 564, § 47. » Id., § 48. » Id., § 49. LOST OK DESTEOTED CERTIFICATE — PROCEEDINGS. 835- destroyed. The application shall be by petition, duly verified by the owner, stating the name of the- corporation, the num- ber and date of the certificate, if known, or it can be ascer- tained by the petitioner ; the number of shares named therein, to whom issued, and as particular a statement of the circum- stances attending such loss or destruction as the petitioner caa give. Upon the presentation of the petition the court shall make an order requiring the corporation to show cause, at a time and place therein mentioned, why it should not issue a new certificate of stock in place of the one described in the petition. A copy of the petition and order shall be served on the president or other head of the corporation, or on the secretary or treasurer thereof, personally, at least ten days before the time for showing cause.^ Sec. 690. Proceedings in such cases. — Upon the return of the order, with proof of due service thereof, the court shall, in a summary manner, and in such mode as it may deem advisable, inquire into the truth of the facts stated in the petition, and hear the proofs and allegations of the par- ties in regard thereto, and if satisfied that the petitioner is the lawful owner of the number of shares, or any part thereof, described in the petition, and that the certificate therefor has been lost or destroyed, and cannot after due diligence be found, and that no sufficient cause has been shown why a new certificate should not be issued, it shall make an order requiring the corporation, within such time as shall be therein designated, to issue and deliver to the petitioner a new cer- tificate for the number of shares specified in the order, upon depositing such security, or filing a bond in such form and with such sureties as to the court shall appear sufficient to indemnify any person, other than the petitioner, who shall thereafter be found to be the lawful owner of the certificate lost or destroyed ; and the court may direct the publication of such notice, either before or after making such order, as it shall deem proper. Any person claiming any rights under the certificates alleged to have been lost or destroyed shall have recourse to such indemnity, and the corporation shall be 1 L. 1890. c. 564, § 50. '836 STATEMENT OF FINANCIAL CONDITION. discharged from all liability to such person upon compliaucs with such order; and. obedience to the order may be en- forced by attachment against the officer or officers of the -corporation, on proof of his or their refusal to comply with it.i Sec. 691. Stockholders may require statement of financial condition to be made. — Stockholders owning five per cent of the capital stock of any corporation not exceeding one hundred thousand dollars, or three per cent, where it exceeds one hundred thousand dollars, may make a written request to the treasurer for a statement of its affairs, under oath, embracing a particular account of all its assets and liabilities, and the treasurer shall make such statement and deliver it to the person presenting the request within twenty days thereafter, and keep on file for six months thereafter a copy of such statement, which shall at all times during busi- ness hours be exhibited to any stockholder demanding an examination thereof ; but the treasurer shall not be required to deliver more than one such statement in any six successive months. For every neglect or refusal of the treasurer to comply with the provisions of this section he shall forfeit and pay to the person making such request the sum of fifty dollars, and the further sum of ten dollars for every twenty- four hours thereafter, until such statements shall be fur- nished. Sec. 692. Stockholders may call meeting to elect di- rectors ; if directors fail to do so. — If the directors of any stock corporation shall not adopt a by-law providing for the annual election of directors for sixty days after the first year of the corporate existence, or if for any reason the annual election of directors shall not be held at the time appointed, any stockhojfler may call a meeting of the stockholders for the election of directors by publishing the notice required by section twenty ^ of this chapter, and by serving upon each stockholder either personally or by mail, directed to him at his post-office address, a copy of such notice at least fifteen days before the meeting, which shall be held at the principal 1 L, 1890, c. 564, § 51. « Id. § 52. « Ante, § 667. STOCKHOLDERS — HOW MAY VOTE. 837 business oiBce of the corporation, or if it has none at the place in this state, where its principal business has been transacted, or if access to such office or place is denied, at some other place in the city, village or town, where such office or place is or was located. At such meeting the stock- holders attending shall constitute a quorum, and they may elect inspectors of election and directors, and adopt by-laws providing for future annual meetings and election of direct- ors, if the corporation has no such by-laws, which shall have the same effect as if they had been adopted by the directors of the corporation ; and transact any other business which may be transacted at the annual meeting of the stockholders. In the absence at such meeting of the books of the corpora- tion, showing who are stockholder*, each stockholder, before voting, shall present his sworn statement, setting forth the number of shares of stock owned by him and standing in his name on the books of the corporation, and, if known to him, the whole number of shares of stock of the corporation, out- standing at the time when the election should have been held, and on filing such statement he may vote on the shares of stock appearing therein to be owned by him and standing in his name on the books of the corporation. The inspectors shall return and file such statements with a certificate of the results of the election verified by them in the office of the clerk of the county in which such election is held, and the persons so elected shall be the directors of the corporation.' Sec. 693. How stockholders may vote.— At every election of directors and meeting of stockholders of any stock corporation, each stockholder who is not in default in the payment of subscriptions for his stock, shall be entitled to one vote for every share of stock held by him for thirty days immediately preceding the election or meeting. Such vote may be cast by proxy, and no person shall vote or issue a proxy to vote at any meeting of stockholders or bond- holders, or both, upon any stock or bonds, which are not in his possession or under his control, or where he has ceased to retain the title thereto, notwitstanding* such * L. 1890, c. 564, § 53. * So in the original. 838 OATH OF STOCKHOLDBES. stock or bonds may stand in his name on the books of the corporation. No stockholder shall sell his vote, or issue a proxy to vote, upon any stock or bonds to any person for any sum of money, or anything of value. Any person offer- ing to vote upon stock or bonds sh^ll, if required by any inspector of election, or any stockholder present, take and subscribe the following oath: "I do solemnly swear that in voting at this election I have not, either directly, indirectly, or impliedly, received any promise or any sum of money or anything of value, to influence the giving of my vote or votes at this meeting, or as a consideration therefor ; and that I have not sold, or otherwise disposed of my interest in or title to any shares or bonds in respect to which I offer to vote at this election, but that all such shares and bonds are still in my possession, or subject to my control." Any person offer- ing to vote as agent or attorney or proxy for any other per- son shall, if required by any such inspector or stockholder, take and subscribe the following oath : " I do solemnly swear that the title to the stock or bonds, upon which I now offer to vote, is, to the best of my knowledge and belief, truly and in good faith, vested in the persons in whose names they now stand, and that such persons still retain control of the same, and that I have not, either directlj' or indirectly, or impliedly, given any promise or any sum of money, or anything of value, to induce the giving of authority to vote upon such stock or bonds to me." The inspectors may administer this oath, and all such oaths and all proxies shall be filed in the office of the corporation. No proxy shall be valid after the expiration of eleven months from its date, and the holder shall not be per- mitted to vote thereon after that time, unless the stockholder shall have specified therein the length of time it is to continue in force, which shall be for some limited period ; and every proxy shall be revocable at the pleasure of the person execut- ing it. The books and papers of the corporation shall be produced at any meeting of its stockholders upon the request of any stockholder, and if the right to vote upon any share of stock at any such meeting shall be challenged, the in- spectors of election shall require the transfer books of the LIABILITY 01" STOCKHOLDBKS. 8S9 corporation to be produced as evidence of stock held therein, and all such shares as may appear thereon in the name of any person shall be voted on by such person, or by proxy, subject to the provisions of this section.* Sec. 694. Who to vote at election of directors called sub- sequently to time for annual election.— If the election of directors shall not be held on the day designated by law, the directors shall call a meeting for such election within sixty days immediately thereafter ; and no shares shall be voted upon at such election, except by the persons or their proxies, who may have appeared on the transfer books of the corpo- ration to have had the right to vote thereon, on the day the election should have been held.^ Sec. 695. Transfer agent of foreign corporation to exhibit books. — The transfer agent in this state of any foreign corporation, whether such agent shall be a corporation or a natural person, shall, at all time during the usual hours of transacting business, exhibit to any stockholder of such cor- poration, when required by him, the transfer book, and a list of the stockholders thereof, if in their power to do so, and for every violation of the provisions of this section, such agent, or any officer or clerk of such agent, shall, forfeit the sum of two hundred and fifty dollars, to be recovered by the person to whom such refusal was made.^ Sec. 696. Liabilities of stockholders.— The stockholders of every stock corporation shall, jointly and severally, be per- sonally liable to its creditors, to an amount equal to the amount of stock held by them respectively, for all debts and contracts made by the corporation, until the whole amount of its capital stock shall have been paid in, and a certificate thereof, signed, verified and acknowledged by the president and a majority of the directors, shall have been filed and recorded in the office of the clerk of the count3% where the principal business office of the corporation is located. Such stockholders shall, jointly and severally, also be personally liable for all debts due and owing to any of its laborers, ser- vants, or employes, other than contractors, for services per- 1 L. 1890, c. 564, § 54. » Id., § 56. 2 Id., § 55. 840 LIMITATION OF STOCKHOLDBKS' LIABILITY. formed by them for such corporation. Before such laborer^ servant, or employe shall charge such stockholder foi- t^uch services, he shall give him notice in writing, within thirty days after the termination of such services, that he intends to hold him liable, and shall commence an action therefor within thirty days after the return of an execution unsatisfied against the corporation, upon a judgment recovered against it for such services. No person holding stock in any corporation as collateral security, or as executor, administrator, guardian or trustee, unless he shall have voluntarily invested the trust funds in such stock, shall be personally subject to liability as a stoclsholder ; but the person pledging such stock shall be considered the holder thereof, and shall be liable as stock holder ; and the estates and funds in the hands of such executor, administrator, guardian or trustee, shall be liable in the like manner, and to the same extent as the testator or intestate, or the ward, or person interested in such trust fund would have been, if he had been living and competent to act, and held the same stock in his own name, unless it appears that such executor, administrator, guardian or trustee voluntarily in- vested the trust funds in such stock, in which case he shall be personally liable as a stockholder.^ Sec. 697. Limitation of lial)ility. — No action shall be brought against a stockholder for any debt of the corporation, until judgment therefor has been recovered against the cor- poration, and an execution thereon has been returned unsatis- fied in whole or in part, and the amount due on such execution shall be the amount recoverable, with costs, against the stockholder. No stockholder shall be personally liable for any debt of the corporation not payable within two years from the time it is contracted, nor unless an action for its collection shall be brought against the corporation within two years after the deSt becomes due ; and no action shall be brought against a stockholder after he shall have ceased to be a stock- holder, for any debt of the corporation, unless brought within two years from the time he shall have ceased to be a stock- holder.2 1 L. 1890, c. 564, § 57. « Id,, § 58. ARTICLE IV. MISCELLANEOUS PROVISIONS. Sec. 698. Laws repealed. Sec. 699. Saving clause. Sec. 700. Construction. Sec. 701. When to take effect. Sec. 698. Laws repealed. — Of the laws enumerated in the schedule hereto annexed that portion specified in the last column is repealed. Such repeal shall not revive a law repealed by any law hereby repealed but shall include all laws amend- atory of the laws hereby repealed.^ Sec. 699. Saving clause.— The repeal of a law or any part of it specified in the annexed schedule shall not affect or impair any act done, or right accruing, accrued or acquired, or liability, penalty, forfeiture, or punishment incurred prior to May first, eighteen hundred and ninety-one, under or by virtue of any law so repealed, but the same may be asserted, enforced, prosecuted, or inflicted as fully and to the same extent, as if such law had not been repealed ; and all actions and proceedings, civil or criminal, commenced under or by virtue of the laws so repealed and pending on April thirtieth, eighteen hundred and ninety-one, may be prosecuted and defended to final effect in the same manner as they might under the laws then existing, unless it shall be otherwise specially provided by law.^ Sec. 700. Construction. — The provisions of this chapter, so far as they are substantially the same as those of laws exist- ing on April thirtieth, eighteen hundred and ninety-one, shall be construed as a continuation of such laws, modified or » L. 1890, c. 564, § 70. '^ H., § 71. 842 LAWS KEPEALED. amended according to the language employed in this chapter, and not as new enactments ; and references in laws not repealed to provisions of laws incorporated into this chapter and repealed, shall be construed as applying to the provisions so incorporated, and nothing in this act shall be construed to amend or repeal any provision of the Criminal or Penal Code, or to impair any right or liability which any existing corpora- tion, its o£Bcers, directors, stockholders or creditors may have or be subject to, by virtue of any special act of the legislature creating such corporation, or creating or defining any such right or liability.^ Sec. 701. When to take effect. — This chapter shall take effect on May first, eighteen hundred and ninety-one.^ SCHEDULE OF LAWS EEPEALBD. Kevlsed Statutes Part I, chapter 18, title 3 Section 5. Eevised Statutes Part I, chapter 18, title 4 All except sections 5 and 6. Laws oi Chapter. SECTIONS. 1811 67 3, 5, 7. 1822 213 All. 1842.; 165 All. 1847 210 38, 39, 40, 41, 43, 44, 45, 51. 1847 405 All. 1848 37 3, 5, 6, 8, 10, 11, 12, 13, 14, 15, 16, 17, 20, 21, 22 3, 5,'6, 8, 10, 11, 12, 13,14, 15, 16, 17, 18, 19, 1848 40 20, 21, 22, 23, 24, 25, 27. 1848 259 2, 5, 12, 13, 16. 1848 265 8, 10. 1850 140 4, 5, 7, 8, 9, 10, 11, 48. 1852 228 3 to 14, both inclusive. 1853 117 3, 5, 6, 8, 10 to 25, both inclusive. 1853 135 3, 4, 6, 7, 8, 9, 10, 14, 15, 16, 17. 1853 333 2. 1853 SB5 All of section 6 to and including the word "trustees " in line 7. 1853 502 All. 1854 232 3, 5, 6, 8, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 24, 25, 27, 28. 1855 425 First and last sentences of section 5. 1857 546 3, 5, 6, 8 and 11 to 20, both inclusive. 1857 776 7. 1 L. 1890, c. 564, § 72. Id., § 73, LAWS REPEALED. 843 sohedtjijE op laws eepbalbd. — Continued. Laws of Chapter SECTIONS. 1860 269 AU. 1861 149 2, 5, 6, 7, 9. 1863 134 All. 1864 517 2. 1866 73 All. 1867 419 2. 1867 480 All. 1867 971 First two sentences ot 5, and 6, 7, 8. 1867 974 4 to 11, both inclusive. 1868 290 All. 1870 773 All. 1872 248 3, last three sentences of 4, and 7, 8, 9, 10. 1872 146 All. 1872 611 All. 1872 820 4, 9 10, 13, 14, 15. 1873 151 All. 1873 469 AU but section 6. 1873 737 7, 8. 1874 143 3, 6, 8, 10, 11, 13, 14, 17. 1874 288 4. 1874 430 AU. 1875 4 All. 1875 343 9. 1875 606 10 to 15, both inclusive. 1875 611 5, 10, 11, 12, 13 to 26, both inclusive, and 28,29. 1877 228 3, 4, 5. 1878 163 1. 1878 203 4, 5, 6, 7, 8, 9, 10, 11, 12, 39, 43, 44. 1878 264 All. 1879 393 All. 1879 395 All. 1879 413 All. 1880 155 All. 1880 182 1. 1880 225 AU. 1880 510 AU. 1881 468 4, 7, 8, 10, 11, 12. 1881 599 1. 1884 252 19. 1884 397 All. 1885 141 AU. 1885 171 All. 1885 489 AU except section 2, 1886 588 All. 1888 293 3. 1888 462 3, 4, 5. CHAPTER XXXV. OF THE GENERAL LAWS. THE TEANSPOETATION COEPORATIONS LAW. Article 1. Perry corporations (§§ 702-707). 2. Navigation corporations (§§ 708-711). 3. Stage-coacli corporations (§§ 712-714). 4. Tramway corporations (§§ 715-718). 5. Pipe-line corporations (§§ 719-733). 6. Gas and electric light corporations (§§ 734-744). 7. Water-worlis corporations (§§ 743-750). 8. Telegraph and telephone corporations (§§ 751-756). 9. Turnpilie, planli-road and bridge corporations (§§ 757-788). 10. Miscellaneous provisions (§§ 789-792). ARTICLE I. EKERY COEPOEATIONS. Sec. 702. Short title of chapter. Sec. 703. Incorporation of ferry corporations. Sec. 704. Payment of capital stock. Sec. 705. Powers. Sec. 706. Effect of failure to pay in capital stock. Sbc. 707. Posting schedule of rates. Sec. 703. Short title of chapter. — This chapter shall be known as the transportation corporations law.^ Sec. 703. Incorporation of ferry corporations. — Three or more persons may become a corporation for conducting and managing a f^rry, by executing, acknowledging and filing a certificate, stating the name of the corporation, the places from and to which the ferry established or to be established shall run ; the term not exceeding fifty years for wliich the corporation is to exist, the amount and number of shares of » L. 1890, c. 566, § 1. POWERS — SCHEDULE OP RATES. 845 its capital stock ; the number of directors thereof, not less than three nor more than fifteen, and the names of the direc- tors for the first year.^ Sec. 704. Half of capital to be paid in before com- mencing business.— No ferry corporation shall be authorized to commence business until at least oue-half its capital shall have been actually paid in, nor until affidavits of such pay- ment, sworn to by a majority of the directors, shall have been filed, in each of the ofiices in which the certificate of incorpora- tion is required to be filed.^ Sec. 705. Powers — In addition to the powers conferred by the general and stock corporation laws, any such corpora- tion shall have power to take by grant from any authority entitled by the laws of this state to make such grant, or by assignment, the franchise or right to establish and maintain ferries, at the place specified in the certificate of incorpora- tion, and to hold and exercise such franchise or right and carry on the business appertaining thereto, subject to the rights of the mayor, aldermen and commonalty of the city of New York, or any other municipal corporation, or of the owner or owners of any legally existing ferry, or the vested rights of any other corporation whatever.^ Sec. 706. Effect of failure to pay in capital stock.— The capital stock of every such corporation shall all be paid in one-half thereof within within one year and the other half thereof within two years from its incorporation, or such cor- poration shall be dissolved.* Sec. 707. Must post schedule of rates — Every corpora- tion operating any ferry in this state, or between this state and any other state, and from or to a city of five hundred thousand inhabitants or over, shall post in a conspicuous and accessible place in each of its ferry-houses, in plain view of the passsn gers, a schedule plainly printed in the English language, ot the rates of ferriage charged thereon and authorized by law to be charged for ferriage over such ferry .^ 1 L. 1890, c. 566, § 2. * Id., § 5. 2 Id., § 3. 6 Id., § 6. * Id., § 4. ARTICLE II. NAVIGATIOJir CORPOKATION.* Sec. 708. Formation of corporation. Sec. 709. Navigation between additional ports. Sec. 710. Payment of capital stock. * Sec. 711. Ferries unauthorized. Sec. 708. Formation of corporation.— Seven or more persons may become a corporation, for the purpose of build- ing for their own use, equipping, furnishing, fitting, purchas- ing, chartering, navigating or owning steam, sail or other boats, ships, vessels or other property to be used in any law- ful business, trade, commerce or navigation upon the ocean, or any seas, sounds, lakes or rivers and for the carriage, transportation or storing of lading, freight, mails, property or passengers thereon by making, signing, acknowledging and filing a certificate, stating the name of the corporation, the' specific objects for which it is formed, the waters to be navigat- ed, and, in case of ocean steamers, the ports between which such vessels are intended to be navigated, the amount of its capital stock, which shall not be less than twenty thousand nor more than four million dollars, the term of its existence, not to exceed fifty years, the number of shares of which the capital stock shall consist, the number of directors there- of, not less than five nor more than thirteen, the names of the- directors for the first year, and the name of the city or town and county in which its principal office is to be situated,, the number of shares of stock which each subscriber of the certificate agrees to take, which must in the aggregate equal ten per cent of the capital and at least ten per cent of which must be paid in cash. , Such certificate shall have attached thereto as a part thereof, the affidavit of at least three of such director^ to the effect that ten per cent of such capital stock has been in good faith subscribed and at least ten per cent of such subscription has been paid in cash. No railroad. corporation shall have, own or hold any stock in any such corporation.^ 1 L. 1890, c. 566, § 10. * So in original. ADDITIONAL POETS. 84T Sec. 709. Navigation between additional ports.— Any such corporation desiring or intending to navigate boats, ships or vessels, upon any other waters, or in case of ocean steamers between any other or additional ports than those named in its original certificate, may from time to time file a further certificate, in the same manner as is prescribed by law for the filing of the original certificate, in which shall be stated such additional waters or ports upon or between which such corporation desires to navigate vessels, and thereafter such corporation may navigate its vessels upon such waters and between such ports, with the like effect as if they had been named in the original certificate.^ Sec. 710. Payment of capital stock. — The capital stock of such corporation shall be paid in, at least one-half thereof within one year, and the remainder within two years from its incorporation, or the corporation shall be dissolved. Within thirty days after the payment of the last installment, a certi- ficate stating that the whole amount of such capital stock has been paid in shall be made, signed and sworn to by the president and a majority of the directors of the corporation, and filed and recorded in the offices where the original certifi- cates of incorporation were filed.^ Sec, 711. Ferries unauthorized. — This articles shall not authorize the formation of any ferry corporation to ply between the city of New York and any other point.* ARTICLE III. STAGE COACH COBPOBATIONS. Sec. 712. Incorporation. Sec. 713. Alteration or extension of route. Sec. 714. Powers. Sec. 713. Incorporation. — Five, or more persons, may become a corporation for the purpose of establishing, main- taining and operating any stage or omnibus route or routes for public use in the conveyance of persons and property • L. 1890, c. 566, § 11, » Id., § 12. » Id., § 13. 848 STAGE COACH EOUTBS. elsewhere than in the city of New York, or any stage route or routes already established for a like public use, by making, signing, acknowledging and filing a certificate which shall state the name of the corporation, the number of years it is to continue, the route or routes upon which it is intended to run as near as practicable, the number of the directors thereof, not less than three nor more than five, the names of the directors for the first year, the amount of its capital stock, the place of residence of each subscriber thereto, and the number of shares of stock he agrees to take in such corpora- tion.^ Sec. 713. Alteration or extension of route. — The direc- tors may, by a vote of two-thirds of their number, at any time alter or extend the route or routes designated in the cer- tificate of incorporation, upon making, acknowledging, and filing a certificate to that effect, in the offices where the orig- inal certificates of incorporation were filed.^ Sec. 714. Powers. — In addition to the powers conferred by the general and stock corporation laws, every such cor- poration shall have power : 1. To take and convey persons and property in stages and omnibuses, and to provide and run the necessary stages and and omnibus upon their route or routes for the public use and to receive compensation therefor. 2. To erect and maintain all necessary and convenient buildings, fixtures and machinery for the use and accommo- dation of their passengers and business.^ ARTICLE IV. TRAMWAY COKPOEATIONS. Sec. 713. Incorporation. Sec. 716. Powers. Sec. 717. Condemnation of real property. Sec. 718. Crossings. Sec. 715. Incorporation.— Thirteen or more persons may 1 L. 1890, c. 566, § 20. " Id., § 21. " M., § 22. TEAMWAY CO.'S POWERS. 849 become a corporation for constructing, maintaining and operating an elevated tramway, constructed of poles, piers, wires, rods, ropes, bars or chains, for the transportation of freight in suspended buckets, cars or other resceptacles, for hire, by making, signing, acknowledging and filing a certifi- cate stating the name of the corporation, the number of years it is to continue, the places from and to which such tramway is to be constructed, maintained and operated, ita length as near as may be, the name of each county through or in which it is made or intended to be made, the amount of its capital stock and the number of shares into which it is to be divided, the number of the directors thereof, not less than three, the names and places of residence of the directors for the first year, the place of residence of each subscriber thereto and the number of shares he agrees to take in such corporation.^ Sec. 716. Powers. — Every such corporation, in addition to the powers conferred by the general and stock corporation laws, shall have power : 1. To cause such examination and surveys for its proposed tramway, to be made as may be necessary to the selection of the most advantageous route, and for such purpose by its officers and servants, to enter upon the lands or waters of any person, but subject to responsibility for all damages dona thereto. 2. To lay out its tramway and to construct the same as hereby provided. 3. To erect and maintain all necessary and convenient buildings, stations, fixtures and machinery for the accommo- dation and transaction of its business.^ Sec, 717. May acquire land by condemnation.— In case any such corporation is unable to agree for the purchase, use or lease of any real property required for the purposes of its incorporation, it shall have the right to acquire title to the same by condemnation.^ Sec. 718, Crossings. — Whenever any tramway, con- structed by any such corporation, shall cross a railroad, high- 1 L. 1890, c. 566, § 30. « Id., § 31. » Id., § 32. 54 850 PIPE LINE CORPORATIONS. way, turnpike, plankroad or canal, such tramway shall be so constructed as not to interfere with the free use of such rail- road, highway, turnpike, plank-road or canal for the purposes for which they were intended.^ ARTICLE V.- PIPE LINE CORPORATIONS. Sbc. 119. Incorporation. Sec. 720. Location of line. Sec. 721. Condemnation of real property. Sec. 722. Railroad, turnpike, plankroad and highway crossings. Sec. 723. Crossings of canals, rivers and creeks. Sec. 724. Consent of local authorities. Sec. 725. Construction through villages and cities. Sec. 726. Over Indian reservations. Sec. 727. Over state lands. Sec. 728. Additional powers. Sec. 729. Use of line to be public — storage — liable as common carriers — rates and charges. Sec. 730. Receipts for property— cancellation of vouchers. Sbc. 731. Monthly statements. Sec. 732. Fences, farm crossings and use of line not inclosed. Sec. 733. Taxation of property. Sec. 719. Incorporation. — Twelve or more persons may become a corporation for constructing and operating for pub- lic use, except in the city of New York, lines of pipe for con- veying or transporting therein petroleum, gas, liquids or any products or property, or for maintaining and operating any line of pipe already constructed ahd owned by any corpora- tion, person or persons, except in such city, for the public use, by making, signing, acknowledging and filing a certificate, stating the name of the corporation, the number of years it is to continue, the places from and to which it is to be constructed or maintained and operated, its length, as near as may be, the name of eacheounty through or into which it is to be con- structed ; the amount of its capital stock, which shall not be less than fifteen hundred dollars for every mile of pipe con- structed or proposed to be constructed, and the number of shares of which it shall consist ; the number of directors not 1 L. 1890, c. 566, 33. LOCATION OF LINE. 851 less than seven, and the names and places of residence of the- directors for the first year, and the place of residence of each subscriber and the number of shares he agrees to take in such corporation, which must in the aggregate equal ten hundred and fifty dollars for every mile of pipe constructed or proposed to be constructed, and twenty-five per cent of which must be paid in cash. Such certificate shall have indorsed thereon or appended thereto and as a part thereof, an affidavit made by at least three of the directors named therein that at least ten hundred and fifty dollars of stock for every mile of line pro- posed to be constructed or maintained and operated has been in good faith subscribed, and twenty-five per cent paid in money thereon, and that it is intended in good faith to con- struct or to maintain and operate the line of pipe mentioned in such certificate, and that such corporation was not projected or formed with the intent or for the purpose of injuring any person or corporation, nor for the purpose of selling or con- veying its franchise to any person or corporation, nor for any fraudulent purpose.^ Sec. 720. Location of line. — Every such corporation shall before commencing the construction of its pipe line in any county, or any proceeding for the condemnation of real property, plainly and distinctly mark and designate the line adopted and located by them by a line of stakes consecutively numbered and equally distant, and not more than twenty rods from each other, so that each line can be definitely known and ascertained in all places, and make a map and survey of the route so located and staked out, and shall indicate thereon plainly the points where such route crosses each parcel of land to which they have not acquired title by agreement, and shall cause such map and survey to be certified by the presi- dent and engineer, and filed in the oflQce of the clerk of the county into or through which the line so located and mapped passes, and shall give to the owner or occupant, if he is known or can be ascertained, of every parcel of land through which such route passes, the title to which has not been acquired by purchase, written notice of the filing of such map and survey, iL. 1890, c. 566, § 40. 852 CONDEMNATION OF EEAL PEOPEETY. statiiig that such route passes over or across such owner's or occupant's lauds, and that the route thereof is indicated there. on by such line of stakes. Any occupant or owner of such lauds feeling aggrieved by the proposed location, may, within iifteen days after the service of such notice, give ten days written notice to the corporation, by service upon the pres- ident, engineer, or any director thereof, and to the owner or occupant of any lands to be affected by the alteration to be proposed by him, of the time and place of an application to be made by him to a special term of the supreme court in the judicial district in which the lands are situated for the appoint- ment of commissioners to relocate such line. If upon the hearing the court shall consider that sufficient cause exists therefor, it shall appoint three disinterested persons commis- sioners to examine the route located and the proposed alter- ation thereof, and direct the mode of proceeding, who shall report to the court the facts relating thereto and their opinion as to the proposed alteration, and what, if any, alteration should be made in such line, and thecourt shall thereupon make such order as it shall deem proper in relation to such alteration, and determine the location of such line, and fix and adjust the costs fees and charges of the commissioners, and the costs and charges of the proceedings, and direct by which party the same shall be paid, and may enforce payment thereof by proceedings as for a contempt of court, for refusal to pay costs directed to be paid by an order of the court, and such order shall be final as to the location of the line upon the lands embraced therein. Such corporation shall not commence the work of construct- ing or laying its line of pipe, or institute proceedings for the condemnation of real property, in any county, until after the expiration of fifteen days from the service by it of the notice herein required, nor until all applications for a relocation of its line in sugh county if any are made, have been finally de- termined.^ Sec. 731. Condemnation of real property,— In case such corporation is unable to agree for the purchase of any » L. 1890, c. 566, § «. CROSSINGS. 853 real estate required for the purposes of its incorporation, and its line of pipe in the county in with such real estate is situated has been finally located, it shall have the right to acquire title thereto by condemnation, but such corporation shall not locate or construct any line of pipe through or under any building, dooryard, lawn, garden or orchard, except by the consent of the owner thereof in writing duly acknowledged, nor through any cemetery or burial ground, nor within one hundred feet of any building, except where such line is authorized by pub- lic officers to be laid across or upon any public highway, or where the same is laid across or upon any turnpike or plank road. No pipes shall be laid for the purpose of carrying pe- troleum, gas or other products or property through or under any of the streets in the cities of this state, unless such cor- poration shall first obtain the consent of a majority of the property owners on the streets which may be selected for the laying of pipes, and such pipe-line shall be located with all reasonable care and prudence so as to avoid danger from the bursting of the pipes.^ Sec. 722. Railroad, turnpike, plank-road and highway crossings. — Whenever any line of pipe of any such corpora- tion shall necessarily cross any railroad, highway, turnpike or plank-road, such line of pipe shall be made to cross under such railroad, highway, turnpike or plank-road and with the least injury thereto practicable, and unless the right to cross the same shall be acquired by agreement, compensation shall be ascertained and made to the owners thereof, or to the public in case of highways, in the manner prescribed in the condemnation law, but no exclusive title or use shall be so acquired as against any railroad, turnpike or plank-road cor- poration, nor as against the rights of the people of this state in any public highway, but the rights acquired shall be a common use of the lands in such manner as to be of the least practical injury to such railroad, turnpike or plank-road, con- sistent with the use thereof by such pipe-line corporation, nor shall any such corporation take or use any lands, fixtures or erections of any railroad corporation, or have the right to 1 L. 1890, c. 566, § 42. 854 CONSENT OF LOCAL AUTHORITIES. acquire by condemnation the title or use, or right to run along or upon the lands of any such corporation, except for the purpose of directly crossing the same when necessary.^ Sec. 723. Construction across and along canals, rivers and creeks. — No pipe-line shall be eonstructed upon or across any of the canals of this state, except by the consent of and in the manner and upon the terms prescribed by the superintendent of public works, unless constructed upon a fixed bridge across such canal, and with the consent of the person for whose benefit such bridge is constructed and main- tained, or upon such a bridge over the canal, at the crossing of a public highway, or street, with the consent of the public ofiicers having the supervision thereof, or of the municipal authorities of any village or city within whose limits such bridge maybe ; nor shall the pipes of any such corporation be laid through or along the banks of any of the canals of this state, nor through or under any of its rivers or creeks, unless such pipes shall be encased so as to prevent leakage, in such manner as shall be approved by the superintendent of public works.^ Sec. 724. Consent of local authorities. — No pipe-line shall be constructed across, along or upon any public highway without the consent of the commissioners of highways of the town in which such highway is located, upon such terms as may be agreed upon with such commissioners. If such con- sent or the consent of the commissioners or municipal author- ities required by the preceding section can not be obtained, application may be made to the general term of the supreme court of the department, in which such highway or bridge is situated for an order permitting the corporation to construct its line across, along, or upon such highway, or across or upon such bridge. The application shall be by duly verified peti- tion and notice which shall be served upon the commissioners of highways of. the town in which the highway is situated, or the municipal authorities of the village or city where such bridge is located, according to the practice or order of the. court, or an order to show cause, and the court upon the 1 L. 1890, c. 566, § 43. ^ M., § 44. CONSTEUCTION OVER INDIAN AND STATE LANDS. 856 hearing of the application may grant an order permitting the line to be so constructed in such a manner and upon such terms as it may direct.-' Sec. 725. Construction through villages and cities, — No pipe-line shall be constructed into or through any incor- porated village or city in this state, unless authorized by a resolution prescribing the route, manner of construction, and terms upon which granted, adopted at a regular meeting of the board of trustees of the village or the common council of the city by a two-thirds vote of such board or council, but such resolution shall not aifect any private right. No pave- ment shall be removed in any city under the provisions of this article, unless done under the direction of the common council, nor until such corporation shall give a bond in such sum as the common council may require for the replacing of any pavements which shall have been removed. In case any pavement shall have been removed and not properly relaid, the common council may bring suit in. any court of record, for the cost of relaying such pavement against any such corporation. No gas-houses shall be erected in any city under the provisions of this article, for supplying gas to the inhabitants, unless consent is first given by the corporate authorities of the city.^ Sec. 726. Over Indian reservations.— Such corporation may contract with the chiefs of any nation of Indians over whose lands it may be necessary to construct their pipe line for the right to construct such pipe line upon such lands, but no such contract shall vest in the corporation the fee of such lands, nor the right to occupy the same for any purpose other than for the construction, operation and maintenance of such pipe line, nor shall such contract be valid or effectual until the same has been ratified by the county court of the county in which the lands are situated.^ Sec. 727. Over State Lands. — The commissioners of the land office shall have power to grant to any pipe line corpora- tion any lands belonging to the people of this state which may 1 L. 1890, c. 566, § 45. ^ h., § 46. 8 ij., § 47. 856 ADDITIONAL POWERS. be required for the purposes of its incorporation on such terms as may be agreed on by them or such corporation may acquire title thereto by condemnation, and if any lands owned by any county, city or town as [is] required by such cor- poration for such purposes, tlie county, city or town oiScers having charge of such lands may grant them to such corpor- ation upon such terms and for such compensation as may be agreed upon.^ See. 728. Additional powers. — Every corporation formed under this article shall in addition to the powers conferred by the general and stock corporation law have power : 1. To cause such examinations and surveys of its proposed line of pipe to be made as may be necessary to the selection of the most advantageous route, and for such purpose by its officers, agents or servants may enter upon the lands or waters of any person, upon, through or across which such corporation can construct its line of pipe, under the provisions of this article, subject however to liability for all actual dam- age which shall be done thereto. 2. To take and hold such voluntary grants of real estate and other property, as shall be made to it to aid in the con- struction, maintenance, operation and accommodation of its pipe line. 3. To lay out its pipe line route not exceeding twelve feet in width, but at the terminations of such line and at all receiv- ing and discharging points at all places where machinery may properly or must necessarily be set up for the operation of such pipe line it may take such additional width, and for such length as may be necessary. 4. To take and convey through pipes any property, sub- stance or product capable of transportation therein by any force, power*r mechanical agency, and to erect and maintain all necessary and convenient buildings, stations, fixtures and machinery for the purposes of its incorporation. ■5. To regulate the time and manner in which property shall be transported over its pipe lines, and the compensation to be paid therefor, but such compensation shall not exceed the 1 L. 1890, c. 566 § 48. TJSB OF LINE PUBLIC. 857 sum or be above the rate of twenty-five cents per one hundred miles for the transportation of forty-two gallons of any pro- duct transported on lines of one hundred miles in length or over, which shall be reckoned and adjusted upon the quan- tity or number of gallons delivered by such corporation at the point to which it shall have undertaken to deliver the same.^ Sec. 729, Use of line to be public— Storage— liable as common carriers— Rates and charges The pipe lines of every such corporation shall be open for trausporation to the public use, and all persons desiring to transport products through such pipe line shall have the absolute right upon equal terms to such transportation in the order of application therefor, on complying with the general requirements of such corporation, as to delivery for and payment of such transpor- tation, but no application for such transportation shall be valid beyond or for a greater quantity of products than the applicant shall then own and have ready for delivery for transportation to such corporation, and every such corpora- tion shall provide suitable and necessary receptacles for re- ceiving all such products for transportation, and for storage at the place of delivery until the same can reasonably by moved by the consignee, and shall be liable as common car riers therefor from the time the same is delivered for trans- portation until a reasonable time after the same has been transported to the place of consignment and ready for deliv- ery to the consignee, which time shall be fixed by general regulation by the corporation, and shall not be less than two days from and after the same shall be ready for delivery and, notice thereof given to such consignee, and all rates and charges of everj' description, for or on account of or in any manner "connected with the transportation of any products, shall be fixed by such corporation by general rules and regu- lations, which shall be applicable to all parties who shall trans- port any products through such pipe line, or deliver or con- tract to deliver products for transportation and shall b& written or printed and exposed to public view and at all times open to public examination.^ » L. 1890, c. 566, § 49. » Id., § 50. 858 MONTHLY STATEMENTS. Sec. 730. Receipts for property— Cancellation of Youch- ers — Delivery of property. — No receipt, certificate order of any kind shall be made, accepted or issued by any pipe line corporation for any commodity unless the commodity repre- sented by them is actually in possession of the corporation at the time of making, issuing or acceptance thereof. Whenever any such corporation shall have parted with the possession of any commodity and received therefor any order, voucher, receipt or certificate, such order, voucher, receipt or certifi- cate shall not be issued or used again, but shall be canceled with the word " canceled " stamped or printed legibly across the face thereof, and such canceled order, voucher, receipt or certificate shall be filed and preserved by such corporation .and a record of the same kept by the secretary thereof. No petroleum or other commodity received for transportation by such corporation shall be delivered to any person without the presentation and surrender of all vouchers, receipts, orders or certificates that have been issued or accepted for the same.'^ Sec. 731. Monthly statements. — Every pipe line corpora- tion shall make monthly a specific statement showing the amount of all commodities received, the amount delivered during the month, and the stock on hand on the last day of each month of the year, and how much of such stock is repre- sented by outstanding certificates, vouchers, receipts or orders, and how much in credit balances on the books of the cor- poration. Such statement shall be made on or before the tenth day of the succeeding month and verified by the oath of the president and secretary that it is in all respects true and correct, and shall be filed within three days thereafter in the county clerk's office in the county where the principal office of the corporation is located, and a true copy of the same posted in a conspicuous place in its principal office for at least thirty (fKys thereafter.^ Sec. 732. Fences— Farm crossings and use of line not inclosed. — It shall not be necessary for any such corporation to fence the lands acquired by them for the purposes of its incorporation. But. if not enclosed by a substantial fence, the owner of the adjoining lands from whom such lands were 1 L. 1890, ^. 566, § 51. s Id. § 52. TAXATION OF PROPERTY. 859 obtained, his heirs or assigns, may occupy and use such lands in any manner not injurious to the interests of the corpora- sion and shall not be liable therefor, or for any trespass upon any such lands except for willful or negligent injuries to the pipes, fixtures, machinery or personal property of the cor- poration. If the corporation shall keep such lands inclosed it shall construct and provide all suitable and necessary crossings with gates for the use and convenience of any own- ers of lands adjoining the portion of its lands so inclosed, and no claim shall be made by it against any owner of adjoining lands to make or contribute to the making or maintaining of any division fence between such adjoining lands and its lands, and if it shall neglect to keek* and maintain substan- tial fences along its lands the owners of adjoining lands may construct and maintain all farm or division fences, and all line fences crossed by such pipe line in the same manner as though it had not acquired such lands for such pipe line, and it shall be liable for all injuries to such fences caused or done by any of its officers or agents, or any persons acting in their or its behalf, or by any laborer in its or their employ or in the employ of any of its contractors.^ Sec, 733. Taxation of property — The real estate and personal property belonging to any pipe line corporation in this state, shall be assessed and taxed in the several towns, villages and cities in the same manner as the real estate and personal property of railroad corporations are assessed and taxed, and such corporation may pay such taxes or commute therefor in the same manner as railroad corporations.*^ ARTICLE VI. GAS AND ELECTRIC LIGHT CORPORATIONS. Sec. 734. Incorporation. Sec. 7-35. Powers. Sec. 736. Appointment of inspectors of gas meters. Sec. 737. Deputy Inspectors. ^Ec. 738. Inspection of gas meters. Sec. 739. Gas or electric light must be supplied on application. 1 L. 1890, c. 566, § 53. ^ M., § 54. * So in the original. 860 INCOEPOEATION ASD POWBBS. Sec. 740. Deposit of money may be required. Sec. 741. Entry of buildings to *meters or lights. Sec. 742. Refusal or neglect to pay rent. Sec. 743. No rent for meters to be charged. Sec. 644. Price of gas. Sec 734. Incorporation. — Three or more persons may become a corporation for manufacturing and supplying gas for lighting the streets and public and private buildings of any city, village or town, or two or more villages or towns not over five miles distant from each other, in this state, or for manufacturing and using electricity for producing light, heat or power, and in lighting streets, avenues, public parks and places and public and private buildings of cities^ villages and towns within this state, by making, signing, acknowledging and filing a certificate stating the name of the corporation, its objects, the amount of its capital stock, the term of its existence not to exceed fifty years, the number of shares which the stock shall consist, the number of directors not less than three nor more than thirteen, the names and places of residence of the directors for the first year, and the name of the town and county in which the operations of the corpora- tion are to be carried on, and thereupon the persons who shall have signed the same, their associates and successors shall be a corporation by the name stated in the certificate.^ Sec. 735. Powers. — Every such corporation shall have the following additional powers : 1. If incorporated for the purpose of supplying gas for light, to manufacture, sell and furnish such quantities of gas as may be required in the city, town or village where the same shall be located, or said two or more villages or towns, not over five miles distant from each other, named in its cer- tificate of incorporation, for ligliting the streets, and public or private buildings or for other purposes : and to lay con- ductors for conducting gas through the streets, lanes, alleys, squares and highways, in such city, villages or towns with the consent of the municipal autliorities thereof, and under such reasonable regulations as they may prescribe; and 1 L. 1890, c. 566, § 60. * So in the originaL INSPECTOR OP GAS METERS 861 such municipal authorities shall have power to exempt any- such corporation from taxation on their personal property for a period not exceeding three years from the organization of the corporation. 2. If incorporated for the purpose of using electricity for light, heat or power, to carry on the business of lighting by electricity or using it for heat or power in cities, towns and villages within this state, and the streets, avenues, public parks and places thereof, and public and private buildings therein ; and for the purposes of such business to generate and supply electricity; and to make, sell or lease all machines, instruments, apparatus and other equipments therefor, and to lay, erect and construct suitable wires or other conductors, virith the necessary poles, pipes or other fixtures in, on, over and under the streets, avenues, public parks and places of such cities, towns or villages, for conducting and distributing electricity, with the consent of the municipal authorities thereof, and in such manner and under such reasonable regula- tions, as they may prescribe. 3. Any two or more corporations, organized under this article or under any general or special law of the state for the purpose of carrying on any business which a corporation organized under this article might carry on, may consolidate such corporations into a single corporation by complying with the provisions of the business corporations law relating to the consolidation of business corporation.^ Sec. 736, Inspector of gas meters. — The governor shall nominate, and'by and with the consent of the senate, appoint an inspector of gas meters, who shall reside in the city of New York, whose duty it shall be, when required, to there inspect, examine, prove and ascertain the accuracy of any and all gas meters used or intended to be used for measuring or ascer- taining the quantity of illuminating gas furnished by any gas- light corporation in this state, except corporations engaged in supplying natural gas to consumers, to or for the use of any person or persons, and, when found to be or made correct, to seal, stamp or mark all such meters, and each of them, with 1 L. 1890, c. 566, § 61. 862 . nsrsPECTiON op gas meters. some suitable device, which device shall be recorded in the office of the secretary of state. Such inspector shall hold his office for the term of five years and until the appointment of his successor, but may be removed by the governor for suffi- cient cause. He shall receive an annual salary of twenty- five hundred dollars, to be paid in the first instance out of the state treasury on the warrant of the comptroller, which shall be charged to and paid into the state treasury by the several gas-light corporations in this state, in amounts proportionate to the amount of the capital stock of such corporations res- pectively, to be ascertained and assessed by the comptroller, of the state. If any such corporation shall refuse or neglect to pay into the state treasury the amount or portion of such salary required of them respectively, for the space of thirty- days after written notice given it by the comptroller to make such payment then the comptroller may maintain an action in his name of office, against such delinquent corporation for its portion or amount of such salary, with interest thereon at the rate of ten per cent per annum from the time when such notice was given and the costs of the action.* Sec. 737. Deputy inspectors. — The inspector of gas meters shall appoint deputy inspectors of gas meters, to reside wherever gas meters are manufactured in this state, to hold office during his pleasure, and who shall in their respectiv& places of residence discharge the same duties as are required of the inspector and be paid by him out of his salary at the rate of two dollars per day, while actually engaged in the discharge of such duties.^ Sec. 738. Inspection of gas meters. — No corporation or person shall furnish or put in use any gas meter, which shall not have been inspected, proved and sealed by the inspector except during such time as the office of inspector may be vacant, or suc4i inspector after request made, shall refuse or neglect to prove and seaHhe meter furnished for that purpose, and every gas-light corporation shall provide and keep in and upon their premises a suitable and proper apparatus, to be ap- proved and sealed by the inspector of meters, for testing and 1 L. 1890, c. 566, § 62. » Id., § 63. GAS AND ELECTRIC LIGHT — SUPPLY OP. 863 proving the accuracy of the gas meters furnished for use by it, and by which apparatus every meter may and shall be tested on the written request of the consumer, to whom the same shall be furnished, and in his pi'esence if he desire it If any such meter on being so tested, shall be found defective or in- correct to the prejudice or injury of the consumer, the necessary removal inspection, correction and replacing of such meter shall be without expense to the consumer, but in all other cases he shall pay the reasonable expenses of such removal, inspection and replacing ; and in case any consumer shall not be satisfied with such inspection of the meter fur- nished to him, and shall give to the corporation written notice to that effect, he may have such meter reinspected by the state inspector, if he require it, upon the same terms and con- ditions as herein provided for the original inspection thereof.^ Sec, 739. Gas and electric light must be supplied on application. — Upon the application, in writing, of the owner or occupant of any building or premises within one hun- dred feet of any main laid down by any gas-light corporation, or the wires of any electric-light corporation, and payment by him of all money due from him to the corporation, the corporation shall supply gas or electric light as may be required for lighting such building or premises, notwith- standing there be rent or compensation in arrear, for gas or electric light supplied, or for meter, wire, pipe or fittings, furnished to a former occupant thereof, unless such owner or occupant shall have undertaken or agreed with the former occupant to pay or to exonerate him from the payment of such arrears, and shall refuse or neglect to pay the same ; and if for the space of ten days after such application, and the deposit of a reasonable sum as provided in the next section, if required, the corporation shall refuse or neglect to supply gas or electric light as required, such corporation shall forfeit and pay to the applicant the sum of ten dollars, and the fur- ther sum of five dollars for every day thereafter during which such refusal or neglect shall continue ; provided that no such corporation shall be required to lay service pipes or wires for 1 L. 1890, c. 566, § 64. 864 INSPECTING METEES, ETC. the purpose of supplying gas or electric light to any applicant where the ground in which such pipe or wire is required to be laid shall be frozen, or shall otherwise present serious obstacles to laying the same; nor unless the applicant, if required, shall deposit in advance with the corporation a sum of money sufficient to pay the cost of bis portion of the pipe or wire required to be laid, and the expense of laying such portion.^ Sec. 740. Deposit of money may be required.— Every gas light and electric light corporation may require every person to which such corporation shall supply gas or electric light for lighting any building, room or premises to deposit with such corporation a reasonable sum of money according to the number and size of lights used or required, or pro- posed to be used for two calendar months, by such person and the quantity of gas and electric light necessary to supply the same as security for the payment of the gas and electric light rent or compensation for gas consumed, or rent of pipe or wire and fixtures, to become due to the corporation, but every corporation shall allow and pay to every such depositor legal interest on the sum deposited for the time his deposit shall remain with the corporation.^ Sec. 741. Buildings may be entered for the examina- tion of meters, lights, and so forth.— Any officer or other agent of any gas light or electric light corporation, for that purpose duly appointed and authorized by the corporation,may at all reasonable times, upon exhibiting a written authority, signed by the president and secretary of the corporation, enter any dwelling, store, or building, room or place lighted with gas or electric light supplied by such corporation, for the pur- pose of inspecting and examining the meters, pipes, fittings, wires and works for supplying or regulating the supply of gas or electric liflit and of ascertaining the quantity of gas or electric light consumed or supplied, and if any person shall, at any time, directly or indirectly, prevent or hinder any such officer or agent from so entering any such premises, or from making such inspection or examination at any reasonable time, 1 L. 1890, c. 566, § 65. a Id., § 66. KENT FOR METERS. 865 he shall, for every such offense, forfeit to the corporation twenty-five dollars.* Sec. 742. Refusal or neglect to pay rent.— If any per- son supplied with gas or electric light by any such corpora- tion shall neglect or refuse to pay the rent or remuneration due for the same or for the wires, pipes or fittings let by the •corporation, for suppling or using such gas or electric light or for ascertaining the quantity consumed or used as required by his contract with the corporation, or shall refuse or neglect, after being required so to do, to make the deposit required, such corporation may prevent the gas or electric light from entering the premises of such person; and their officers, agents or workmen may enter into or upon any such premises between the hours of eight o'clock in the forenoon and six o'clock in the afternoon, and separate and carry away any meter, pipe, fittings, wires or other property of the corpora- tion, and may disconnect any meter, pipe, fittings, wires or other works whether the property of the corporation or not, from the mains, pipes or wires of the corporation.^ Sec 743. No rent for meters to be charged.— No gas- light corporation in this state, shall charge or collect rent on its gas meters, either in a direct or indirect manner, and any person, party or corporation violating this provision shall be liable to a penalty of fifty dollars for each offence, to be sued for and recovered in the corporate name of the city or village where the violation occurs, in any court having jurisdiction, and when collected to be paid into the treasuary of such city or village and to constitute a part of the contingent or general fund thereof.^ Sec. 744. Price of gas. — In any city in this state having or a population of eight hundred thousand or over, no corpora- tion or person shall charge for illuminating gas a sum to exceed one dollar and twenty-five cents per thousand feet; and such gas shall have an illuminating power of not less than twenty sperm candles, of six to the pound, and burning at the rate of one hundred and twenty grains of spermaceti per hour, 1 L. 1890, c. 556, § 67. * Id., § 69. « Id., § 68. £5 86.6 -WATEE-WOEKS. jbested at a distance of not less than one mile from the place of manufacture, by a burner consuming five cabic feet of gas per hour, and shall comply with the standard of purity now or hereafter established by law ; but in any district or ward of any city containing over one minion inhabitants, which district or ward is separated from the main portion thereof by a stream or other natural boundary, any gas-light corpora- tion may charge a price not to exceed one dollar and sixty cents per thousand cubic feet, but such corporation shall not charge a greater price in the city where its main works shall be situated than in such district or ward.' ARTICLE VII. WATEK-WOEKS COEPOEATION. Sec. 745. Incorporation. Sec. 746. Must supply water; villages trustees may contract for same; tax: therefor. Sec. 747. Powers. Sec. 748. Survey and map. Sec. 749. Condemnation of real property. Sec. 750. Corporation may contract with other towns or villages; amend- ed certificate. Sec. 745. Ipcorporation. — Seven or more persons may b^come a corporation for the purpose of supplying water to any of the towns or villages and the inhabitants thereof, in this state, by executing, acknowledging and filing a certifi- cate stating the name of the corporation, the amount of it» capi|;al stpck, the number of shares into which it is to be divided, the location of its principal office, the number of itS' directors, not less than seven, the names and places of resid- ence of the directors for the first year, the name of the towns and villages which it is proposed to supply with water ; that the permit of the authorities of such towns and villages herein required has been granted; the post-office address of eacti subscriber, and the number of shares he agrees to take in* » L, 1890, c. 566, § 70. MtrST SUPPLY WATEK, 867 such coTpoxation, the aggregate of which shall be at least on«rtentJi of the capital stock, and ten per cent of which shall be paid in cash to the directors. At the time ot filing there shall be annexed to the certificate and as a part • thereof, a permit, signed and acknowledged by a majority of the board of trustees of the village, in case an incorporated- village is to be supplied with water, and in case a town, or' any part thereof, not within an incorporated village, is to be so supplied, by the supervisor, justice of the peace, town clerk and highway commissioners thereof, or a majority of them, authorizing the formation of such corporation for the purpose of supplying such village or town with water, and an affidavit of at least three of the directors that the amount of capital stock herein acquired has been subscribed and paid in cash.^ Sec. 746. Must supply water — Tillage trustees may con- tract for same— Tax therefor.— Every such corporation shall supply the authorities or inhabitants of any town or village,, where they have organized, with pure and wholesome water, at reasonable rates and cost to all consumers who may use the same, and the board of trustees of any incorporated village of. this state shall have the power to contract for the term of one year or more with any such corporation for the delivery by it to the village of water, through hudrants* or otherwise» for the extinguishment of fires and for sanitary and other public purposes ; and the amount of such contract agreed to be paid shall be annually raised as a part of the expenses of such village and shall be levied, assessed and collected in the same manner as other expenses of the village are raised, and when collected shall be kept separate from other funds of the vil- lage, and be paid over to such corporation by such trustees- according to the terms and conditions of any such contract? and any such contract entered into by the board of trustees of any village shall be valid and binding upon such village, but no such contract shall be made for a longer period than, five years, nor for a sum exceeding in the aggregate two and one-half mills for every dollar of the taxable property of such 1 L. 1S90, c. 556, § 80. * So in original. ^68 POWERS— CONDEMNATION OF LANDS. grillage per annum, unless a resolution authorizing the same has been submitted to a vote of the electors of the village, in the manner provided by the village law, and approved by a majority of the voters entitled to vote, and voting on such -question at any annual election or at, a special election duly > called ; and any board of trustees, when so authorized, may ;make such contract for a term not exceeding thirty years, .and the amount of such contract shall be paid in semi-annual installments.^ Sec. 747. Powers. — Every such corporation shall have the following additional powers : 1. To lay and maintain their pipes and hydrants for deliver- ing and distributing water in any street, highway or public ; place of any town or village in which it has obtained the per- -mit required by section eighty^ of this article. 2. To lay their water pipes in any streets or avenues or public places of an adjoining town or village, to the town or "village where such permit has been obtained. 8. To cause such examinations and surveys for its proposed waterworks to be made as may be necessary to determine the 'proper location thereof, and for such purpose by its officers, •agents or servants, to enter upon any lands or waters in the -town or village where organized, or in any adjoining town or v^illage for the purpose of making such examinations or sur- veys, subject to liability for all damages done.^ Sec. 748. Survey and map.— Before entering upon,taking or using any land, for the purposes of its incorporation such cor- poration shall cause a survey and map to be made of the lands ■intended to be taken or entered upon, by and on which the land of each owner or occupant shall be designated, which ■map shall be signed by the president and secretary, and filed in office of ^^he county clerk of the county in which such ilands are situated.* Sec. 749. Condemnation of real property.— Any corpora- tion organized under this article, shall have the right to ac- quire real estate, or any interest therein, necessary for the 1 L. 1890, c. 566, § 81. ' Id., § 83. -^ Ante, § 745. « Id., § 82. CONTEACT WITH OTHER TOWNS. 869' purposes of its incorporation, and the right to lay, relay, repair and maintain conduits and waterpipes with connections and fixtures, in, through or over the lands of 'others ; the right to intercept and divert the flow of waters from the lands of riparian owners, and from persons owning or interested in any waters, and the right to prevent the flow or drainage of noxious or impure matters from the lands of others into its reservoirs or sources of supply. If any such corporation^ which has made a contract with any town or village to supply it with pure and wholesome water as authorized by section- two of this article, shall be unable to agree upon the terms of purchase of any such property or rights, it may acquire the same by condemnation. But no such corporation shall have power to take or use water from any of the canals of this state or any canal reservoirs as feeders or any streams which have been taken by the state for the purpose of supplying the canals with water.i Sec. 750. Corporation may contract with other towns or Tillages— Amended certificate. — When any such corporation has entered into a contract with the authorities of any town or village not mentioned in its certificate of incorporation, but situated in the same county as the towns or villages mentioned therein, or an adjoining county, to supply it with pure and wholesome water, it may file an amended certificate, stating the name of such other town or village to be so supplied with water, and it may thereupon supply any such town or village, with water in the same manner and with the same rights and subject to the same requirements as if it had been named, in original certificate of incorporation.^ ARTICLE VIII. TBLEGEAPH AND TELEPHONE COEPOEATIONS. Seo. 751. Incorporation. 752. Extension of lines. t53. Construction of lines. 754. Transmission of despatches, 755. Consolidation of corporations. 756. Special policemen. 1 L. 1890, c. 566, § 84. 2 Id., § 85. 870 INCOEPORATION. Sfec. 761. Incorporation. — Seven or more persons may become a eorporation for the purpose of constructing, owriing, using and maintaining a line or lines of electric telegraph or telephone, wholly within or partly beyond the limits of this state, or for the purpose of owning any interest in any such line or lines, or any grants therefor by executing, acknowl- edging and filing a certificate, stating the name of the corpora- tion ; its general route and the points to be connected ; its capital stock ; the number of shares into which it is to be divided ; the term of its existence ; the number of its directors not less than seven ; the names and residence of the directors, for the first year, and the post-office address of the subscribers and the dumber of shares which each agrees to take in such corporation.! Sec. 753. Extension of line. — Any such corporation may construct, own, use and maintain any line of electric telegraph or telephone, not described in its original certificate of incor- poration, whether wholly within or wholly or partly beyond the limits of this state, and may join with any other corpora- tion in constructing, leasing, owning, using and maintaining such line, or hold or own any interest therein, or become les- sees thereof, upon filing in the same manner as the original certificate is required to be filed an amended certificate, exe- cuted and acknowledged by at least two-thirds of the directors •of such corporation, describing the general route of such line or lines, and designating the extreme points connected thereby, and upon procuring the written consent of the persons owning at least two-thirds of the capital stock of such corporation, and such amended certificate shall ndt be filed until there is indorsed thereon or annexed thereto an affidavit made by at least three of the directors of the corpora- tion that such consent has been obtained, which affidavit shall be filed with and be a part of such certificate.^ Sec. 753. Construction of lines.— Such corporation may «rect, construct and maintain the necessary fixtures for its lines upon, over or under any of the public roads, streets and highways ; and through, across or under any of the waters 1 L. 1890, c. 566, § 100. 2 Id., § 101. TEANMISSION OF MESSAGES. 871 ■within the limits of this state, and upon, through or over any- other land, subject to the right of the owners thereof to full compensation for the same. If any such corporation can not agree with such owner or owners upon the compensation to be paid therefor, such compensation shall be ascertained in the manner provided in the condemnation law.^ Sec. 754, Transmission of despatches. — Every such 'Corporation shall receive despatches from and for other tele- graph or telephone lines or corporations, and from and for any individual, and on payment of the usual charges by in- dividuals for transmitting despatches as established by the Tules and regulations of such corporation, transmit the same with impartiality and good faith and in the order in which they are received, and if it neglects or refuses so to do, it shall pay one hundred dollars for every such refusal or neglect to the person or persons sending or desiring to send any such despatch and entitled to have the same so transmitted, but arrangements may be made with the proprietors or publishers •of newspapers for the transmission for publication of inteL ligence of general and public interest out of its regular order .^ Sec. 755. Consolidation of corporations. — Any cor- poration organized under this article may lease, sell or convey its propetty, rights, privileges and franchises, or any interest therein, or any part thereof, to any telegraph or telephone •corporation, organized under or created by the laws of this or any other state, and may acquire by purchase, lease or conveyance the property, rights, privileges and franchises, or any interest therein or part thereof, of any such corporation, and may make payments therefor in its own stock, money or property •or receive payment therefor in the stock, money or property ■of the corporation to which the same may be so sold, leased or conveyed, but no such lease, sale, purchase or conveyance ^hall be valid until it shall have been ratified and approved by ft three-fifths vote of its board of directors or trustees, ;and by the vote or written consent of stockholders owning at 1 L. 1890, c. 566, § 102. See Ante, §§ 216-243. ' Id., § 103. 872 SPECIAL POLICEMEN. least three-fifths of the capital stock given at a meeting of all the stockholders duly called for that purpose.^ Sec. 756. Special policemen. — The police department or board of police of any city may, in addition to the police force now authorized by law, appoint a number of persons, not exceeding two hundred, who may be designated by any corpo- ration operating a system of signaling by telegraph to a central office for police assistance to act as special patrolmen in connection with such telegraphic system. And the person sa appointed shall, in and about such service, have all the powers possessed by the members of the regular force, except as may be limited by and subject to the supervision and con- trol of the police department or board of police of such city^ No person shall be appointed such special policeman who does, not possess the qualifications required by such police depart- ment or board of police for such special service ; and persona so appointed shall be subject, in case of emergency, to do duty as part of the regular police force of the city. The police department or board of police shall have power tO' revoke any such appointment at any time, and every person appointed shall wear a badge and uniform, to be furnished by such corporation and approved by the police department or board of police, such uniform shall be designated at the time of the first appointment and shall be the permanent unifornr to be worn by such special police, and the pay of such special patrolmen and all expenses connected with their service shall' be wholly paid by such corporation, and no expense or lia- bility shall at any time be incurred or paid by the police department or board of police of any city, for or by reason of the services of such persons so appointed.^ » L. 1890, c. 566, § 104. » Id,, § 105. ARTICLE IX. TtrBNPIKE, PLANK-KOAD AND BRIDGE CORPORATIONS^ Sec. 757. Incorporation. Sac. 758. Restriction upon location of road* Sec. 759. Agreement for use of highway. Sec. 760. Application to hoard of supervisors. Sec. 761. Commissioners to lay out road. Sec. 762. Possession of and title to real estate. Sec. 763. Use of turnpike road by plank-road. Sec. 764. Width and construction of road. Sec. 765. Construction of bridges. Sec. 766. Certificate of completion of road or bridge. Sec. 767. Toll-gates and rates of toll, and exemptions. Sec. 768. Toll gatherers. Sec. 769. Penalty for running a gate. Sec. 770. Location of gates and change thereof. Sec. 771. Inspectors, their powers and duties. Sec. 772. Change of route, extensions and branches. Sec. 773. Milestones, guide-posts and hoist-gates. Sec. 774. Location of office of corporation. Sec. 775. Consolidation of corporations, sale of franchise. Sec. 776. Surrender of road. Sec. 777. Taxation and exemption. Sec. 778. Hauling logs and timber. Sec. 779. Encroachment of fences. Sec. 780. Penalty for fast driving over bridges. Sec. 781. Acts of directors prohibited. Sec. 782. Actions for penalties. Sec. 783. Proof of incorporation. Sec. 784. When stockholders to be directors. Sec. 785. Dissolution of corporation, road to be a highway. Sec. 786. Town must pay for lands not originally a highway. Sec. 787. Highway labor upon line of plank-road or turnpike. Sec. 788. Extension of corporate existence. Sec. 757. Incorporation. — Five or more persons may be- come a corporation for the purpose of constructing, maintain- ing and owning a turnpike, plank-road or a bridge, or cause- way across any stream or channel of water, or adjoining bay, swamp, marsh, or water to form in connection with such bridge or causeway a continuous roadway across the same^ by signing, acknowledging and filing a certificate containing: the name of the corporation, its duration, not exceeding fifty- '874 LOCATION OF EOAD — AGEBEMENTS. years, the amount and number of shares of its capital stock, the number of its directors, and their names and post-oifice address for the first year, the termini of the proposed road, its length, and each town, city or village into or through which it is to pass, or of a bridge, the location arid plan thereof, and the post-office alddress of each subscriber, and the number of shares of stock which he agrees to take, the aggregate of which subscriptions shall not be less then five hundred dollars for every mile of road, or if a bridge corpor- -ation not less than one-fourth of the amount of the capital ^tock, and five per cent of which must be actually paid in -cash. There shall be indorsed on and annexed to the cer- tificate and made ^ part thereof the affidavit of at least three of the directors named therein, that the required amount of ■capital stock 'has been subscribed and the prescribed per- centage paid in cash.^ Sec. 758. Restrictions upon location of road, — No such road shall be laid out through any orchard of the growth of four years or more to the injury or destruction of fruit trees, or through any garden cultivated for four yea.rs Or more before the laying out of the road, or through any dwelling- house or building connected therewith, or any yards or in- closures necessary for its use or enjoyment without the con- sent of the owner thereof, nor shall any such corporation bridge any stream in any manner that will prevent or endanger the passage of any raft of twenty-five feet in width or where the same is navigable by vessels of steamboats.^ Sec. 759. Agreements for use of highways,— The super- visor and commissioner of highways, or a majority, if there he more than one of any town, may agree in writing with any such corporation for the use of any part of a public highway therein required for the construction of any such roa,d, and the Compensation to be paid by the corporation for taking and using such highway for such purpose on first obtaining consent of at least two-thirds of all the owners of land bounded on or along such highway, which agreement shall be filed and recorded in the town clerk's office of the 1 L. 1890, c. 566, § 120. '! C. D. of A.D. 189. ) E. F. [L. s.] G. H. C. L. F., Notary Public. K. L. " Exhibit A." List op Subscribers to the capital stock of " The [name in full, add word ^'■Limited " when such the .case.~\ 908 FORMS — COMMISSIONBES' EBPOBT. Names. Ebsibence. No. op Shakes. S.T L. C New York City Rochester, N. T etc., etc. "Exhibit B." ' NOTICE. 10. A meeting of the subscribers to the capital stock of [insert corporate name in fuW] will be held at No. street, in the city of , on the day of , 189 , at o'clock in the noon, for the adoption of By-Laws for said corporation, and the election of Directors to manage the concerns of the company for the first year. Dated New York, A. D. 189 A. B., CD., E. F., G. H. K. L., Commissioners. ss. State of New York, County of , [^Insert name of person who mailed notice'], being duly sworn, doth depose and say, that on the day of A. D. 189 , he deposited in the post-office in the city of , printed [or written] copies of the above notice, each notice having been first securely inclosed in an envelope, and said envelopes having been respectively addressed to each subscriber at his last known place of residence, and the proper postage on each of said envelopes having been prepaid and properly stamp^. [Signature of deponent.^, Sworn to before me this day of , A. D. 189 . ss. : [L. S.] [C. L. F., Notary Public.'] fobms — pboop of execution of deeds. 909 Exhibit C. (See Ante, § 76.) State of New Yobk, ) Majority of Directors. G.H.,j forms — extending coepoeatb existence. 911 State op New York, County of ss. On this day of January, 189 , personally appeared' before me A. B., above named, to me known to be the presi- dent of [insert name of corporation, with word " Limited " i_f such the case,] and to me known to be one of the individuals described in, and who executed, the foregoing certificate, and being by me sworn did say that the foregoing names signed to the foregoing certificate, comprise a majority of the direc- tors of said corporation, and that they severally signed the same, and that the statement in said certificate is in all res- pects correct and true of his own knowledge, except as to the matters therein stated on information and belief, and as to those matters he believes it to be true. A. B., Presto Sworn to before me this ) day of January, 189 . ) [L. S.] C. L. F., Notary Public. No. 6. EXTENDING CORPORATE EXISTENCE— CERTIFY GATE. (^Ante, § 73.) Whereas, the original certificate of incorporation of the [insert corporate name, with the addition of the word " Limited " if of that dags'], a corporation duly created and formed under and in pursuance of an act of the Legislature of the State of New York, entitled " An act to provide for the organization and regulation of certain business corporations," passed June 21, 1875, and of the several acts amendatory thereof or sup- plementary thereto, fixed the duration of said company for the term of years, commencing on the day of » 189 . il2 POWER OP ATTORNEY TO TRANSFER STOCK. Now, therefore, we [insert individual names'], being stock holders in the said [insert corporate name as above"], owning at least two-thirds in amount of the capital stock of said company, to wit : [insert number] shares, do hereby consent that the corporate existence of said company be, and the same hereby is, extended for the term of [here insert the addi- tional term] years from the expiration' of the period originally fixed for the duration of its corporate existence, as mentioned in its original certificate of incorporation. In witness whereof, we have hereunto subscribed our names, this day of , 189 . [Signature of stockholders.'] State of New York, County of ' On this day of , 189 , before me personally appeared [insert names of stockholders signing said certificate], to me known to be the individuals described in, and who signed the foregoing certificate, and severally acknowledged to me that they signed the same for the purposes therein mentioned. In witness whereof, I have hereunto affixed my hand and seal of office, in the city of on the day and year above set forth. [L. S.] C. L. F., Notary Public. No. 7. POWER OF ATTORNEY FOR TRANSFER OF STOCK. • (See Ante, §§ 52, 52f., 52g.) Know all men by these presents, that I, A. B., for value received, have bargained, sold and assigned, and by these presents do bargain, sell and assign unto L. M., the following described stock, to wit., (describe the kind of stock) unto me, belonging and held by certificate No. , in my FORMS — PROXY. 913 name, and hereunto annexed, and do hereby constitute and appoint N. M., the treasurer of said company, my true and lawful attorney, irrevocably, for me and in my name and stead, to assign and transfer the said stock unto the said L. M., and for that purpose to make and execute the necessary acts of assignment and transfer, and an attorney or attorneys under him for that purpose to make and substitute, and to do all other lawful acts requisite for affecting the premises, hereby ratifying and confirming the same. In witness whereof, L have hereunto set my hand and seal in the city of , the day of , in the year of our Lord, one thousand eight hundred and ninety • (Signed) A. B. [l, s.] No. 8. ACKNOWLEDGEMENT ANNEXED. State of New Tobk, J City of , >ss: County of . ) On the day of 188 personally appeared before me A. B., to me known to be the person described in and who executed the within instru- ment, and acknowledged the execution of the same for the uses and purposes therein mentioned. C. L. P. Commissioner of Deeds. No. 9. PROXY TO VOTE. CAnte, §§ 68, 68c.) Know all men by these presents, that I, A. !B., of do hereby constitute and appoint G. C, to be my lawful attorney, substitute and proxy, for me and in my name, to vote on all the stock held by me in the [insert name] Com- pany, at any election for directors, as fully as I might or could do, were I personally present at such election. 38 . 914 POEMS — EEPORT OF COMPTKOLLER. In witness whereof I have hereunto set my hand and seal this day of , 189 . In presence of (Signed) A. B. [l. s.] No. 10. AFFIDAVIT ANNEXED TO PROXY. COTJNTT, SS : I, A. B., of , do swear, that the shares in the capital stock of the [insert name\, for which I have given the above power of proxy to vote, do not belong and are not hypothe- cated to the said G. C, and that they are not hypothecated or pledged to any other corporation, or any person or persons whatever ; that such shares have not been transferred to him for the purpose of enabling him to vote thereon, and that I have not contracted to sell or transfer them upon any con- dition, agreement or understanding, in relation to the manner of voting at any election. A. B. Sworn before me this day of , 189 ,! C. L. F., Justice, etc^ No. 11. REPORT TO COMPTROLLER. (^Ante, § 90, et seq.') BEPOET OP DIVIDENDS.* Report of the Company, for the year ending ' Eeport to be filed in the Comptroller's office on or before November fifteenth, annually. The tax based on the report is due January fifteenth. Accounts for the same will be sent from the Comptroller's office about Jauui- ary first. FORMS — KEPOKT OP COMPTEOLLEE. 915 the first day of November A. D. 189 , made pursuant to proYisions of chapter 542, Laws of 1880, and the subsequent acts amendatory thereof. (G-ive post-office address of company, street and No.") 18 . . To the Comptroller of the State of New York : Agreeably to law, as treasurer of the above company, I make the following report, viz. : Date of organization of tlie company Total authorized capital of company $ Whole number of shares of stock authorized Number of shares of stock issued Par value of each share $ » Amount paid into the treasury of the company on each share $ Amount of capital paid in $ Amount of capital upon which dividends were declared. . . $ Date of each dividend declared Amount of each dividend declared $ Bate per cent, per annum of dividends Capital stock employed inKewYork State i $ If not in New York State, where and how employed Treasurer. State of New Yobk, County of On this day of , A. D. 189—, personally appeared: before me, the subscriber, a notary public in and for the county of , one , treasurer of the above-named company, who,, being duly ^worn according to law, did depose and say, that the foregoing report is just and true, according as the accounts stand in the books of the company, and that it includes all dividends, whether cash, stock, scrip or of any other character 1 This line need not be filled out by those companies the capital of which i» ftU employed in this state. 916 POEMS — REPOET OP DIVIDENDS. or description, declared by said company, during the year ending on the 1st day of November, A.D. 189 . Treasurer. ;Sworn to and subscribed before me, the day and year aforesaid. [L. s.] C. L. F., Notary Public?- EEPOET OP DIVIDENDS AilD APPEAISEMBNT.^ Report and Appraisement of the Company, for !the year ending the first day of November, 189 State op New Yoek, County of On this day of , A.D. 189 , before me, the sub- ■scriber, a notary public in and for the county of , personally appeared , treasurer, and , secretary of the above-named company, who, being by me severally ^uly sworn, did say that the amount of capital paid in of said company is f , and that said company declared no divid- end in cash, stock, scrip, or of any other character or descrip- tion during the year ending the first day of November, 189 , save the dividends herein reported, and that they will with fidelity, according to the best of their knowledge and belief, ■estimate and appraise the capital stock of said company at its actual value in cash, not less, however, than the average price which said stock sold for during said year. Treasurer. Secretary. 1 Notary Public should always use a seal. " Eeport and appraisement for year in which no dividends or a dividend of leas than six per cent, has been declared, as shown by the report of dividends. See Ante, p. 914. FOEMS — REPORT OF GROSS EARNINGS. 917 Sworn to and subscribed before me, the day and year aforesaid. [L. s.] C. L. F., Notary Puhlie Office of the Company. 18 We, the undersigned, being the treasurer and secretary of the above-named company, do certify that, in pursuance of our aforesaid oaths, we have estimated and appraised the capital stock of said company, at its actual value in cash as follows, viz. : shares at dollars and cents per share, amounting in the whole to dollars. In witness whereof we have hereunto set our hands the day and year aforesaid. Treasurer, Secretary. Report of Gross Earnings. Report of the gross earnings in the State of New York, of the Company, for the year ending June 30, 189 , made in accordance with the requirements of chapter 542, Laws of 1880, as amended. Office of the Company.^ .189. Gross earnings derived from all sources during the above period *• For tolls and transportation ^• For telegraph business *• ' Give P. O. address with street and number. 918 FORMS — CHANGING PLACES OF BUSINESS. For express business $ Taxable gross receipts $ State of New Yokk, | . County of » ) " On this day of A. t). 189 , personally appeared before me, a notary public in and for the county of , one treasurer of the Company, who, being duly sworn according to law, did depose and say that the foregoing report is true and correct. Treasurer. Sworn to and subscribed before me, the day and year aforesaid. [L. S.J [C. L. F. Mtari/ Public.'} No. 11. CERTIFICATE CHANGING PRINCIPAL PLACE OF BUSINESS. (^Ante, § 106.) Whereas, the original certificate of incorporation of the [i-n. sert corporate name, with the addition of the word ^'■Limited " if of that class] a corporation duly created and formed under and in pursuance of an act of the Legislature of the State of New York, entitled " An act to provide for the organization and regulation of certain business corporations," passed June 21, 1875, fixecf the principal business office of said corporation, at the city of , in the State of New York: Now therefore, we [insert individual names], being stock, holders in the said [insert corporate name as aSowe], owning at least two-thirds in amount of the capital stock of such corpo- ration, to wit : [insert number] shares, do hereby consent that " LIMITED " COS. — CEETIPICATE OF PAYMENT. 919 the principal business office of said company be, and the same hereby is, changed from the said city of , to the city of , in the State of New York. In witness whereof, we have hereunto subscribed our names this day of , 189 . \_Signature of stocJcholders.'] State op New Yeok, County of \ ss. On this day of 189 , before me personally appeared [imsert names of stockholders signing said certificate'], to me TpevsonaMj known to be the individuals des- cribed in, and who signed the foregoing certificate, and sever- ally acknowledged to me that they signed the same for the purposes therein mentioned. In witness whereof, I have hereunto affixed my hand and seal of office, in the city of on the day and year above set forth. [l. s.] [C. L. F., Mtary Public.^ No. 13. *' Limited Liability" — CEBTrFicATE op Payment in Full OP Capital Stock. (^Ante, § 123.) We, A. B., C. D., E. F., and G. H., being directors of the [insert corporate name,] " Limited " and a majority thereof, -and the said A. B. being president of said company, do hereby ■certify : That the capital stock of said company is dollars. 920 " LIMITED " COS. — CERTIFICATE OF PAYMENT. That one-lialf thereof, to wit, dollars, was paid in before the day of 189 , and within one year from the incorpofation of said company and the other half within two years from the incorporation of said company. \Tf the payment has been paid in any other way than in cash, set out here how paid.'] That the payment of the last instalment of the said capital stock, to wit, the sum of dollars, was made within the- thirty days last past, and on the day of 189 Witness our hands, this day of ,189 A. B., Prest. CD. ) E. F. ) G.H. S Majority of Directors. State of New York, County of ss. On this day of 189 , before me the subscriber, come A. B., C. D., E. F., and G. H., directors of the [insert corporate name'\ "Limited" and the said A.,B.,.. president of said company, and the said C. D., E. F., and G.H., directors being duly sworn, each for himself, deposes and says, that he has read the foregoing certificate and knows the contents thereof, and that the same is in all respects correct and true. Severally sub^ribed and ) A. B., Frest. sworn to before me, this > CD. day of , ) E. F. 189 . G.H. [L. S.] [C L. F., Mtary Public.'] FOKMS — PETITION IN CONDEMNATION. 921 No. 14. PETITION FOR CONDEMNATION OF REAL • PROPERTY. (Awte, § 219.) New York Central and Hudson River Railroad Company, Plaintiff, against Francis X. Kimball, John Wilson, Thomas Rttmsey, Wiliam Rbdpield, David H. Stonbman, Samuel Paige AND Charles Wendell, Defandants. The Supreme Court : The New York Central and Hudson River Railroad Com- pany, the above-named plaintiff, by this petition, respectfully shows to this court : Mrst. — That the said New York Central and Hudsoa River Railroad Compan}'- is a domestic corporation duly organ- ized under and in pursuance of the laws of the state of New York, for the purpose of constructing, maintaining and oper- ating a railway for public use in the conveyance of persons and property, from a point on the north side of Forty-second street, near Vanderbilt avenue, in the city and county of New York ; running thence through said city to a point on the Hudson river at or near Spuyten Duyvil, and thencfr along or near the east shore of the Hudson river via Peeks- kill, Poughkeepsie and Hudson to or near East Albany, cross- ing the Hudson river at Albany ; thence to Schenectady, and thence along or near the north shore of the Mohawk river to Utica; thence via Syracuse to Buffalo; the line of said rail- way running through or into the counties of Westchester, Putnam, Dutchess, Columbia, Rensselaer, Albany, etc., inth& state of New York ; that the said plaintiff has its principal place of business at the Grand Central depot. New York 1922 EOEMS — PETITION IN CONDEMNATION. city J and that the names and places of residence of its princi- pal officers are: Chauucey N. Depew, president, New York city ; Edwin D. Wooster, secretary, New York city : and of its directors are, Cornelius Vanderhilt, New York city ; Cyrus W. Field, New York city ; William Bliss, Boston, Massachu- setts, and Erastus Corning, Albany, N. Y. Second.— Th&t the real property to be condemned is situated in the city and county of Albany and state of New Zbrk, bounded and described as follows, to wit : (describe property'). Third. — That the public use for which the said property is lequired is for tracks, switches and sidings, whereon and whereby plaintiff's cars and trains may be moved, loaded, and unloaded, stored, received and dispatched ; that said property is necessaiy from the great increase of the business of the plaintiff, in that it will enable the plaintiff to lay out additional tracks for the loading and unloading of cars ; fur- nish additional room for the storage of cars ; to receive and deliver freight with increased convenience ; save time and expense to the consignees of freight and to the plaintiff, and in every respect promote the interests and welfare of the plaintiff, as well as of those whg furnish freight for transport- ation. Fourth. — That the names and places of residence of the owners of said property are as follows, viz .: Francis X. Kim- ball, residing at No. 4 Jefferson street, in the city of Albany, N. Y. , John Wilson, residing No. 1180 Broadway, in the city •of Albany, N. Y. ; Thomas Rumsey, residing at No. 42 Colo- nie street, in the city of Albany, N. Y. ; William Redfield, residing at No. 64 Livingston avenue, in the city of Albany, N. Y. ; David H. Stoneman, residing at 82 Van Woert street, in the city of Albany, N. Y. ; Samuel Paige, residing in the -city of Toledo and State of Ohio ; and Charles Wendell, whose place of residence cannot, after diligent inquiry, be ascertained. ( Where owner infant ;) That said John Wilson is an infant, and his general guardian is Joseph Wilson, who resides at No. 1180 Broadway, in the city of Albany, N. Y. ; that Thomas Rumsey is an infant, but has no general guardian. POEMS — ^PETITION IN CONDEMNATION. 923 and resides with Samuel Rumsey at No. 42 Colonie street, in the city of Albany, N. Y. ( Where owner is lunatic, idiot or habitual drunkard .•) That said William Redfield is a lunatic, and that his commit- tee (or trustee), is John Redfield, who resides at No. 64 Liv- ingston avenue, in the city of Albany, N. Y. ; that said David H. Stoneman is a habitual drunkard ; that he has no ■committee (or trustee), and resides witli John Stoneman at No. 82 Van Woert street, in the city of Albany, N. Y. ( Where owner non-resident, having agent or attorney ;) That said Samuel Paige is a non-resident, residing in the city of Toledo, and State of Ohio, having an agent (or attor- ney) in the State authorized to contract for the sale of the said property, whose name is John Paige, residing at No. 42 Van Woert street, in the city of Albany, N. Y. (^Where owner unknown:) That the owner of the said property is unknown to the plaintiff, and cannot, after diligent inquiry, be ascertained ; that for the purpose of ascertaining him, inquiry was made of numerous persons residing upon and in the vicinity of the said property, and of many others who would be most likely to have knowledge as to who the owner of said property was ; and that the only information plaintiff could obtain from any of such persons, in all such conversations and inquiries, is that a person, whose name could not be learned, claimed to own the said property in the year 1863, and who, in 1865, removed to San Francisco, California, and has not been seen nor heard from since. ( Where place of residence of owner unknown :) That the place of residence of said Charles Wendell is unknown to plaintiff, and cannot, after diligent inquiry, be ascertained ; that for the purpose of ascertaining it, inquiry was made of Robert Wendell, who resides in the city of Troy, N. Y., who is said Charles Wendell's brother, and only relative residing in this State, and that said Robert Wendell, in answer to said inquiries on or about the 1st day of May last, said that he was ignorant of said Charles Wendell's residence ; but that said Charles Wendell was not a resident of this State, and that his last known place of residence was at Lima, 924 POKMS — PETITION IN CONDEMNATION. Ohio, from whence he moved about a year ago ; that a letter addressed to said Charles Wendell, at Lima Ohio, was depos- ited in the post-o£Sce at Albany, N. Y., and was shortly there- after returned through the post-ofBce, with the information that the said Charles Wendell could not be found. Fifth. — That the plaintiff has been unable to agree with the owners of the said property for its purchase, for the rea- son that the Siiid owners demand nine thousand dollars for said property, which is largely in excess of the value thereof. Sixth. — That the value of the said real property is five thousand dollars. Seventh. — That it is the intention of the plaintiff in good faithto complete the work or improvement for-which the said property is to be condemned, and that all the preliminary stepsrequired by law have been taken to entitle it to insti- tute these proceedings. Wherefore the plaintiff demands that it may be adjudged, that the public use requires the condemnation of tire real property herein described, and that the plaintiff be entitled to take and hold such property for the public use specified, upon making compensation therefor, and that commissioners of appraisal be appointed to ascertain the compensation to be made to the owners for the property so taken. New Yokk Central and Hudson River Railroad Company, By Chatjncey M. Depew, President. Dated, New York City, May 7, 1890. State op New York, City and County of New York, Chauncey M. Depew being duly sworn, says that he is" the President of the New York Central and Hudson River Rail- road Company, the plaintiff named, in the foregoing petition ; that he knows the contents of said petition, and that the same is true to his own knowledge, except as to the matters rOEMS — RATES OF PETITION. 925 therein stated to be alleged upon information and belief, and that as to those matters he believes it to be true. Chattncey M. Depew. Subscribed and sworn to before me this day of 189 . ' George C. Kimball, Notary Public, New York County. No. 15. NOTICE OF TIME AND PLACE OF PRESENTATION. (^Ante, § 220.) EWN YORK SUPREME COURT— Coxmir of Albaijy. New York Central and Hudson River Railroad Company, Plaintiff, against Francis X. Kimball and others. Defendants. Take notice, that the petition of the New York Central and Hudson River Railroad Company, a copy of which is liaievvith served upon you, will be presented to the Supreme Court of the State of New York, at a Special Term thereof appointed to be held at the city hall in the city of Albany, N. Y., on the day of 189 , at the opening of the court on that day, or as soon thereafter as counsel can be heard, and a motion will then and there be made that the demand of said petition be granted, Dated Albany, N. Y., , 189. Yours, etc., Harris & Rxjdd, Attorneys for Plaintiff. Office and post-office address, Tweddle building, Albany, N. Y., To Francis X. Kimball, etc. (naming owners of property"). 926 FOEMS — ANSWER IN CONDEMNATION. No. 16. ANSWER CONTAINING GENERAL AND SPECIFIC DENIALS. (Ante, § 224) [Name of Court.] [iVames of all the parties.] The defendent [^name, if less than all], answering the pe- tition of the plaintiff herein : Denies \_or denies upon information and belief] that, etc. Instating allegation of the petition denied by him, and in like- manner make denial of each allegation specifically denied.] Cr denies each and every allegation in said petition con- tained. Or denies any knowledge or information sufficient to form a belief, as to each and every allegation in the said petition contained. Or denies any knowledge or information sufficient to form a belief, as to whether, etc. (stating the allegation, as ta which such denial is made), and in like manner as to each allegation so denied. Wherefore this defendant demands judgment against the plaintiff, dismissing the petition herein, together with costs. R. G. S., Defendants Attorney. Office and post-office address, No. street, N. Y. State op New York, City and County of Albany, F. X. K., being duly sworn, says that he is one of the defendants named in the above entitled proceeding ; that the foregoing answer is true to the knowledge of the deponent, except as to the matters therein stated to be alleged on infor- mation and belifef, and that as to those matters he believes it to be true. F. X. K. Subscribed and sworn to before me, this day of, 189 C. L. F., Notary Public, [o>* CommW Deeds.] FOEMS — ^ANSWER SETTING UP NEW MATTER. 927 No. 17. ANSWER SETTING UP NEW MATTER AS A DE- FENCE. (Ante, § 224.) \^N^a,me of Court.'] [iVames of all the parties.'] The defendant [name if less than all], answering the peti- tion of plaintiff, herein alleges that, etc. [stating facts or new matter constituting defence]. Wherefore this defendant demands judgment against th& plaintiff, dismissing petition herein, together with costs. R. G. S., Defendant's attorney. Office and post-office address, No. street, N. Y. [Verification as in form No. 16.] No. 18. CEETrPICATE OF INCORPORATION OP MANUEACTTTRINQ Company where Business is to be carried on WITHIN THE StATE.1 QAnte § 275.) State oe New York, County of We [insert names of subscribers, to be not less than three], 1 Duplicate copies should be prepared, each of which should be signed by the persons whose names are inserted at the commencement of the eertiiicate in the presence of, and acknowledged before some officer competent to take the acknowledgment of deeds. When so signed and acknowledged, one duplicate should be filed and recorded with the clerk of the county in which it is stated that the operations of the company are to be carried on, and the other duplicate should be filed and recorded in the of&ce of the secretary of State. The tax for organization must be paid before these certificates are offered for record. If it has not been, the certificates will not be received. This is thought to be the preferable way, but in Eaton v. Aspinwall (N.T.) 928 MANXJPACTUEING COMPANY. do hereby certify that we desire to form a company pursuant to the provisions of an act entitled " An act to authorize the iormation of corporations for manufacturing, mining, mechan- ical or chemical purposes," passed February 17, 1848, and of the several acts extending and amending said act. That the corporate name of the said company is to be [insert name of comj>any.] That the objects for which the company is to be formed are [insert objects forivhich company is formed']. That the amount of the capital stoclt of the said company is to be [insert amount of capital stock"]. That the term of the existence of the said company is to be [state number of years, nor exceeding fifty years]. That the number of shares of which the said stock is to consist is to be [insert number] . That the number of the trustees who shall manage the concerns of the said company shall be [insert number of trustees not less than three, not more than thirteen]. That the names of such trustees for the first year are [insert names of trustees].* That the names of the town and county [or towns and counties] in which the operations of the said company are to be carried on are [insert names of town and county, or towns and counties]. -3 Abb. Pr. 411 ; (1856) s. c. aff'd 19 N. Y. 121 ; the filing of a " certified copy " to the articles of association, in the secretary of State's office, was held to be a sufficient compliance with the requirement for filing " a duplicate. " That suit was brought under the Act of April 12, 1852, which provided that seven or more persons desiring to form such a company, should "make, sign and acknowledge before some officer competent to take the acknowledgment of deeds, and file in the office of the clerk of the county in which the principal office for the management of the business of the company shall be situated, and a duplicate tlrereof in the office of the secretary of State, a certificate in writing," which should state the name and objects of the company, amount of capital stock and other necessary facts. It will be observed, that the lan- guage of this Ocean Steamship Company Act, so far as related to the pre paring and filing of said articles of association, was identical with the said provisions of the General Manufacturing Act. The court held that the filing of a certified copy of the articles of association in the secretary of State's office was a sufficient compliance with the requirements of the act. CEKTIFICATE OF INCOEPOBATION. 929 In witness whereof we have hereunto set our hands, this of , 189 . [Signatures of subscribers]. State of New York, County of , On this day of , a. d. 189 , before me per- sonally appeared [insert names of subecribers to the certificate], to me known to be the individuals described in and who executed the foregoing certificate, and they severally, before me, signed the said certificate, and acknowledged that they executed the same for the purposes therein mentioned. C. L. F., Commissioner of Deeds. No. 19. CEETrPICATB OF InCOEPORATION, ■WHERE THE BUSIN-ESS, OE PART OF IT, IS TO BE CAEEIED ON OUT OF THE StATE.^ [Proceed as in the preceding form to the asterisk.*] The said company is formed for the purpose of carrying on some part of its business out of the State of New York, namely, at [insert name q/'pZace],and the names of the town and county in which the principal part of the business of the said com- pany is to be transacted are [insert names of town and county] . No. 20. FORMS OF BY-LAWS.2 ( Under Manufacturing Act.') (Ante, § 340). ARTICLE I. § The number of trustees of the {insert corporate name o 1 To be signed, acknowledged, filed and recorded as directed with respect to above certificate. 2 This form of by-laws Is in use by a book publishing company and may serve as a suggestion to meet other requirements. 59 930 POEMS — BY-LAWS. company'] shall be not less than three, nor more than five, who shall be stockholders of the Company to the extent of at least five shares each, and shall be annually elected at the annual meeting on the first Monday in May, and serve fot the term term of one year ; and until such time as their successors are chosen. When any vacancy shall occur in the Board of Trustees, or in any office of the Company by death or other- wise, the Trtstees shall have power to fill such vacancy for the unexpired term. ARTICLE II. The officers of the Company shall consist of a President, Vice President, Treasurer, Secretary and Manager of Station- ery Department, who shall be elected at each annual meeting of the Company by the Board of Trustees. ARTICLE III. A majority of the Board of Trustees shall constitute a quorum for the transaction of business. ARTICLE IV. At all Stockholders meetings a majority of the whole Capital Stock of the Company issued shall be required to constitute a quorum for the transaction of business. ARTICLE V. The Trustees shall, if they think it necessary, hold a regu- lar meeting on the first Monday of each month, and any Trustee shall»have power to call a special meeting at any time, by giving an individual or written notice to each Trus- tee, of at least one day. ARTICLE VI. The President shall preside at all meetings of the Board of MANUPACTUEING COMPANIES. 931. Trustees ; sign all certificates of Stock of the Company ; sign- all checks, notes and contracts in the name of the Company., He shall appoint and discharge all employees, subject to the approval of the Board of Trustees, He shall have general charge of and supervision over all the business of the Com- pany, and over all the employees, and he shall do and perform all acts incident to the office of President of such Company. ARTICLE VII. The Vice President is authorized to perform all the duties of the President, in case of the absence, sickness or other disability of the President. ARTICLE VIII. The Treasurer shall have the care and custody of all the funds and books of the Company, and to deposit same as Treasurer, in such bank as the Trustees may elect ; and shall sign all checks, drafts, notes and orders for the payment of money. He shall at all reasonable times exhibit his books and accounts to any Director of the Company upon applica- tion at the office of the Company, during business hours. ARTICLE IX. The Secretary shall keep the minutes of the Board of Trustees, in a proper book provided for that purpose, and also the minutes of the meetings of Stockholders. He shall attend to the giving and serving of all notices of the Company, and shall sign all certificates of stock, and affix the seal of the Company thereto. He shall have charge of the certificate and transfer book, and such other books as the Trustees may direct, all of which shall be open at all reasonable times, during business hours, for the examination of any Trustee upon application at the sffice of the Company. ARTICLE X. The Manager of the Stationery Department shall have 932 FORMS — BY LAWS. charge of, and general supervision of the employees, and make all purchases of stock required in said department. ARTICLE XI. No Trustee or other OSieer of the Company shall receive a salary as such, but shall receive it only as an employee. ARTICLE XII. No obligation shall be entered into in the name of the Company, or any contract signed exceeding in value, without the consent previously obtained of a majority of the Board of Trustees. ARTICLE XIII. At each annual meeting a dividend shall be declared from the profits of the Company for the preceding year of such an amount as the Trustees in their discretion may determine. ARTICLE XIV. Stock shall be transferable upon the books of the Company upon presentation to the Secretary of the certificate of such stock with the written assignment thereon, duly signed by the person in whose name such stock appears upon the stock book : but no Stockholders in said Company shall sell or as- sign as collateral, or in any manner hypothecate the whole or any part of the stock owned by him, without the written con- sent of all the Trustees in said Company, unless said Stock- holder shall have given to every other Stockholder six months written notic^of his desire to sell or assign said stock, giving the name of the person to whom said stock is to be sold, or assigned, or hypothecated, and any other Stockholder in said Company shall within the said period of six months have the first light or option to buy and take an assignment of said stock. MANUPACTTJEING COMPANIES. 933 ARTICLE XV. The following shall be the regular order of business at all meetings of the Board of Trustees : 1. Reading and approving the minutes of the previous meeting. 2. Report of President. 3. Report of Treasurer, 4. Report of Secretary. 5. Unfinished Business. 6. New Business. ARTICLE XVI. These By-laws may be changed, amended or added to at any time by the Trustees upon written notice having been given at the second regular meeting preceding the one upon which said amendment or addition shall be acted upon. No. 21. CERTIFICATE OF PAYMENT OP CAPITAL STOCK. ( Under Manufacturing Act.') CAnte, § 346.) State of New Yokk, County of We, A. B., C. D., and E. F., trustees of the [insert corpo- rate name'] and a majority thereof, and the said A. B. being president of said company, do hereby certify and declare : That the amount of capital stock of the [insert corporate name'] was fixed at dollars, and that the whole thereof has been paid in. [ Where the capital stock or some part thereof has been issued in 934 CERTIFICATE OF PAYMENT OF CAPITAL. payment for property necessary for the operation of the com- pany, the certificate must state that fact as follows :'\ That pursuant to authority of the board of trustees of said corporation, the property of said corporation consists of (in- sert property, premises, goods or patent rigpt purchased): which were purchased of J. G. for shares of the capital stock of said corporation ; and the officers of said corporation were authorized to issue full paid stock for the same. And the whole amount of shares was issued to said J. G. for the said property, and has been issued as full paid stock and delivered to him. Witness our hands, this day of , 189 A. B., President. A. B., \ Majority of C. D., > Trustees. E. F., ; State of New Yoke, County of ss. A. B., C. D., and E. F., to me known to be the individuals who are described in and who signed the foreign certificate, being each duly sworn, jointly and severally, depose and say that the said A. B. is president of the [insert corporate name'], and the said A. B., C. D. and E. F. are trustees of said cor- poration, and a majority thereof, and that the foregoing cer- tificate of payment of capital stock, made and subscribed by them, is true. A. B., President. • A. B., \ Sworn to before me this day of 189 . C. D., S Trustees. E. F., ) i [l. S.J C. L. F. Notary Public. MANTJPACTtJEING COMPANIES. 935 No 22. ANNUAL REPORT. (Tinder Manufacturing AetJ) (^Ante, § 347.) State of New York, County of We, A. B., C. D., and E. F., trustees of the [insert corpor- ate name'], and a majority thereof, and the said A. B. being president of said company^ do hereby certify and declare That the capital stock of said company, is [insert amount o°] dollars. That [insert amount :] dollars of said capital stock has been paid in [insert amount ;] thereof in cash and [insert amount :] thereof has been paid up in full by mining property necessary for the company's business, in payment for which [insert amount] capital stock was issued. That the balance, to wit : [insert amount] of the capital stock of said company has never been issued. That the existing debts of said company amount, as nearly as can be ascertained, to [insert amount] dollars. Witness our hands, this day of January, 18 . A. B., President. A. B., C. D., E. F., ) AFFIDAVIT ANNEXED TO REPORT. Majority of Trustees. State of New York, J City of Rochester. > ss. County of Monroe. ) On this 3d day of January, 189 , personally appeared be- fore me A. B., above named, to me known to be the president of said corporation, and to me known to be one of the indi- 936 POBMS AJSJSUAL KEPOKT. viduals described in and who executed the foregoing certifi- cate, and being by me sworn did say that the foregoing names signed to the foregoing certificate, comprise a majority of the trustees of said corporation, and that they severally signed the same, and that the statement in said certificate is in all respects correct and true. C. L, F Commissioner of Deeds. GENERAL INDEX. Heferences are to the Pages. ABANDONMENT OF PKOCEEDINGS: in condemnation of real property, 535 when proceedings may be abandoned, 536 ABATEMENT OP ACTION : against director for false report, 185 ACCOUNTS OF COKPOBATION : frauds In keeping, 511 ACT EEGULATING PBOCEEDINGS FOB THE CONDEMNATION OF BEAD PBOPEBTY. See Condemnation of Beal Pbopebty, Procbbdings For. when takes effect, 516 ACTS AND CONTEACTS: Of Officers and Agents, 61 estoppel, 63 knowledge of manager, 63, 65 previous assent, 62 ratification, 62 by acquiescence, 62, 63 ACTIONS : Against Corporation : after expiration of charter, 475, 480 alleging corporate existence, 480, 481 Criminal Proceedings : indictment, 484 appearance, 484 proof of incorporation, 484, 485 damages for non-payment of promissory note, 488 for fraudulent representations of directors, 482 form of complaint in, 483 form of complaint in, 482, 483 for torts committed after expiration of charter, 475-480 938 GENEEAL INDEX. Sfm-ences are to the pages. ACTIONS— Continued. Against Cokporations — Contirmed. misnomer when waived, 487 motion to stay suit, 484 where made, 484 name in which brought, 422 Peooess : prayer of, 482 voluntary appearance, 481 by attorney, 481 proof of incorporation, 486 unnecessary when, 486 when put in issue by pleadings, 486 to procure dissolution. See Dissolution, iNVOiiUNTAET upon a note, 487 damages for non-payment, 488 extension of time to answer or demur, 487, 488 voluntary appearance of, 481 by attorney, 481 by and against, 463, 497 By Cobpobation : against officers, 467, 471 by minority stockholders to prevent diversion of as- sets, 474 complaint in, 468 for conversion of corporate property, 467 for misapplication of funds, 467 for misappropriation of corporate property, 467 for mismanagement, when maintained, 468 jurisdiction of courts of equity, 468—470 to compel to account, 468, 469 to prevent misapplication of capital, 369 to prevent violating charter, 469 to set aside contract in fraud of shareholder's rights, 474 when individual stockholders may maintain, 467 after expiration of charter, 480 by assignee of corporation, 475 by minority stockholders to prevent division of assets, 474 by stgckholder, 465, 466 corporation necessary party, 467 by whom to be brought, 463, 464 misnomer when waived, 487 on contracts in restraint of trade, 475 on contracts ultra vires, 483 proof of incorporation, 486 unnecessary when, 486 ^^TuTp'^eT GENERAL INDEX. 939 Ji.CTIONS— Oontinued. By Coepokations— ConimueA setting up contract uUra vires, when estopped, 483 to procure dissolution. See Dissolution, VoiiUNTAUT. when officer may maintain, 364, 365 by receiver to recover dividends wrongfully paid, 432 by whom action for corporation to be brought, 463, 464 complaint in, 463, 471 in action by stockholder against officers, 468 allegation of incorporation, 471 description of incorporation, 471 in, against officers, 468 verification of, when domestic corporation, 472 by whom made, 472 when insufficient, 472, 473 for fraud in sale of stock, parties, 165 FOBBIGN COBPOEATIONS : suits against by non-resident, 492 how commenced, 493 service of summons, 'etc., how made, 493 in state courts, 494 by publication, 494 how made, 493 on officer outside of state of domicil, 494, 496 in United States courts, 496 voluntary appearance, 491 when may be sued, 490 suits by, when, 489 security for costs, 489, 490 Process : service of, 473 on whom made, 473 to enforce liability of directors, trustees, or officers for false certi- ficate or report, 196 to enforce liability of trustee on failure to make and file annual report, 643, 645 when to be brought, 645 practice and pleading in, 643 to enforce liability where indebtedness exceeds limit, 201 to gain preference, restraining by injunction, 453 to vacate charter triable by jury, 449 verification of pleadings of domestic, 472 ADMINISTKATOK : not personally liable on stock held as such for debts of company, 201, 649 ADOPTION OP BY-LAWS. See By-laws. 940 GENERAL INDEX. ^gThTpaUT" AFFAIRS OF COEPOKATIONS : knowledge of directors, 413 absence from directors' meeting, assent presumed when, 513 - presence at directors meeting, 513 presumed assent to proceedings, 513 presumptions as to, 513 AGENTS OF COKPOEATIONS : 54-65 acts binding when, 55 apparent authority, 61 compelled to give evidence, 452 delegation of power to, 60 duty of company as to, 61 estoppel to deny authority, 63 execution of note by, 52 personal liability on, 52 frauds of, 64 fraud in sale of stock, parties in action for, 145 knowledge of managers, 63, 65 liability for fraudulent sale of shares of stock, 508 misrepresentations of, 64 notice as to powers, 61 notice to agent, 55, 57 presumption of communication by, 56 private information not affect company, 56 when binding upon company, 55, 56 where agent is also agent or ofQcer of another corporation, 5S notice to directors, 58 private information, 59 notice to president, 57 notice to stockholders, 59 previous assent, 62 private instructions to, 61 ratification of acts of, 61 by acquiescence, 62, 63 ratification of employment, 59 evidence of, 60 formal meeting not necessary, 59 statutory, 6* implied, prohibition, 61 statutory agents, 60 implied prohibition, 60, 61 ANNUAL ELECTION: failure to provide for by by-law, effect, 113. See Election. Seferences are GENERAL INDEX. 941 to the pages. ANNUAL EEPORT: after appointment of receiver, 186 as to, 10, 181, 640 conourrenoe of majority of directors necessary, 184 failure to fill, 183, 640, 641 evidence of, 184 failure to make, 611, 640, 641 individual liability of trustees, 640, 641 liability of directors, 183 debt of corporation, 184 in nature of penalty, 184 liability of incoming directors, 301 in action against, judgment against corporation not prima facie evidence, 301 successive failures, 183 termination of, 185 bona fide purchasers, 185 to co-directors, 185 penalty, 181, 183 false report, action against directors for, 185 abatement of, 185 liability for failure to make and file, 10, 64, 642 does not survive, 643 ex delicto, 643 extent of liability of trustees, 642, 643 for costs when, 643 for what debts liable, 643. 644 joint and several, 643 liability for failure to file, 642 practice and pleading, 643 time of filing, 643 when action to be brought, 645 when penalty not incurred, 643 when trustee not liable, 643 neglect to file, penalty for, 181, 183 minority report, 11 penalty for neglect to file, 181, 183 publication of, 10 recording, 10 to comptroller, 232 failure to make, 242 examining books and fixing taxes, 243 penalty, 243 estimate and appraisal of secretary, 234 certificate of appraisal and copy of oath, 234 dissatisfaction of comptroller, 243 what to state, 242 942 GENERAL INDEX. ^gThTpageT ANNUAL EEPOBT— CoBimued. when to be made, 233 where dividends have not been declared, 233, 234 ANSWER : in condemnation proceedings, 523 what to contain, 523 APPEAL : in condemnation proceedings, 537, 538 from final order in, 536 right of, 537 waiver of, 537, 538 APPEARANCE : in condemnation proceedings by attorney, 522, 523 effect of, 523 of defendant habitual drunkard, 522 of defendant idiot, 522 of defendant infant, 522 of defendant lunatic, 522 of domestic corporation, 481 by attorney, 481 of foreign corporation, 491 APPOINTMENT : of commissioners to assess damages, 4, 426 ARTICLES OF INCORPORATION: where in duplicate but one set can be filed, 77 persons signing duplicate not filed not liable on sub* scriptions, 77 ASSESSMENT. See Taxation. ASSIGNEE OF CORPORATION: action by on contracts in restraint of trade, 475 ASSISTANCE, "WRIT, ETC. See Wbit ob Assistance. - • ASSUMPSIT : may be maintained on tacit or implied employment, 40 ATTORNEY-GENERAL : action by for dissolution of corporation, 443 against trustees, directors or managers, to compel accounting, 506 ""tim^Zel^ GENERAL INDEX. 94S BANKING POWERS : penalty for exercising, 662, 663 liability of stockholders, 663 BOAED OF DIREGTOES: quorum, provision of by-laws as to, 107 BONDS OF CORPORATION : action against directors, 169 when lies by creditor, 169 as a bonus, 170, 171 for what issued, 163 fraudulent issue of, 168 issued for property, 169 BONUS : bonds as, 170, 171 BOOKS OF CORPORATION: for subscriptions, 7 of accounts, 178-180 destruction of, 179, 180 mutilation of, 179, 180 refusal to produce, 179 right to inspect, 178 stockholder's right to inspect, 178 " of stockholders, 180, 181 contents of, 180, 181 BOEEOWING MONEY AND ISSUING BONDS : 165 defence of want of power to make, 166 burden of proof, 166 mortgage by corporation, 166 power to borrow money, 165 showing purpose, 166 BREACH OF TRUST : director applying corporate property to payment of individual debt, 136 BY-LAWS : adoption of, 7 by meeting of subscribers, 7 amendment of, 116 how made, 7 proceedings on, 117 944 GENERAL INDEX. ^oTpali? BY-LAWS— Continued, as to, 103-115 as to assessments, 109 when void, 109 as to salary of officers, 113 of agents, 115 , of directors, 113 of president, 114 of servants, 115 certificate of incorporation, verified record, 9 construction of, 107 controlling acts of members, lOS definition of, 103, 104 effect of, 106 enforcement of, restrained by injunction when invalid, 109 extent of, 106 failure to provide for annual election, 113 force of, 106 inconsistent with general law, 110, 111 interfering with right of transfer of stock, 156 invalid by-law restrained by injunction, 109 making under manufacturing act, 561 mode of adoption of, 105 notice of by-laws, 112 , persons dealing with corporation must take, 113 whQp presumed, 112, 113 provision as to quorum, 107 power to make, 104 regulating membership, 108 regulating giving notes, 110 regulating transfer of stock, 629 repeal of by-law, 112 restricting right to sue. 111, 112 trustees may make, 628 force and effect of, 628 validity of, 107 verified record of certificate of incorporation, 9 void in part, 110 what they must provide, 103 BUSINESS ACT: administrator not personally liable for debts, 201 analysis of, 1 Annual Kbpokt : as to, 10, 11, 181 failure or neglect to file, penalty, 11, 181 minority report, 11 bonds, issuing, 165 ^fo'tuZtr GENERAL INDEX. 945 BUSINESS ACT— ConKnued. bonds issuing— Contimuied. for what purpose, 169 book for subscriptions, 7 commission to open, 76 borrowing money and issuing bonds, 165 by-laws, adoption of, 7 what they must provide, 103 Capital Stock: as to, 5 certificates of, 6, 145 issuance and transfer, 145 diminution, 6, 171 increase and reduction of, 171 Increase of stock, 5, 171 statement of increase, 5 subscriptions to, 139 when and how payable, 139 certificate of incorporation, 9, 70 115 new, on extension of business, 311 changing principal place of business, 262 classification of corporations, 288 commissioners to open subscription books, 76 report of, 115 consolidation of corporations, 270 agreement of directors, 270 agreement of stockholders, 283 appraisement of stock, 283 business of new company, 288 liability of stockholders, 287 IfEW COBPOBATION : powers and liabilities, 286 rights, privileges and franchises, 286 obligations of old company, 287 rights of creditors, 287 when completed, 285 construction of, 294, 295, corporate name, 4 Debts of Coepobation. amount of, 199 '. limitation of stockholder's liability, 207 who not liable for, 201 DiBECTOES, duties of, 8 cumulative voting, 8 election of, 7, 121 holding over, 210 59 946 GENERAL INDEX. ■^^uTpalS'.^ BUSINESS k.GT—ContimiM. DlEECTOKS — Continued. number of, 121 In opera companies, etc., 138 quorum, 139 resignation of, 8 DlSSOIitTTION, involuntary, 371 action to dissolve, 371, 376 by attorney general, 443 discretion of legislature, 443 leave of court to sue, 445, 449 when and how granted, 449 must bring when, 446 by judgment creditor, 371 by whom to be brought, 416 distribution of corporate property, 438 evidence on, 452 grounds for, 376, 445 injunction staying action, 450 by creditor, 452 injunction against corporations, 456 requisites of, 456, 457 judgment, 348 form of, 449 judgment roll, 450 copy of to be filed and published, 450 liability of directors and stockholders, 442 parties to, 436, 454 creditors, 454 directors, 436 officers, 436 stockholders, 436 trustees, 436 receiver, 422 order appointing, 459 permanent receiver, 422 powers of, 423, 425 temporary receivers, 422 powers of, 422 additional powers of, 434 subscription to stock, recovery on, when, 441 trial by jury, 449 what corporations excepted from act, 451 voluntary, 319—330 petition for dissolution, 319 affidavit to be annexed, 322 contents of, 319 ^^IZZeT GENERAL INDEX. 947 BUSINESS \0T— Continued. Dissolution — Continued. voluntary — Contimted. petition tor— Continued. conveyances after void, 330 final order, 328 application for, 328 hearing of, 327 application for final order, 32S appointment of referee, 427 original papers to be used, 328 injunction, 322 notice of application for, 322 liability not impaired by, 301 mortgages executed after void, 330 order to show cause, 322 -ublication of, 326 service on creditors and stockholders, 326 presentation of, 322 receivers in, 322 sales after void, 330 temporary receiver, 322 transfer of property after void, 330 when directors may petition for, 313, 318 where directors are equally divided, 318 dividends, 186 of insolvent corporation, 195 liability of directors for debt, 199 EliBOTIONS : failure to elect, 210 inspectors of, 210 oath of, 210 penalties for violation of, of directors, annual, 209. See Dikectoes. how and when to be held, 209 who may vote at, 204 executors are not personally liable for debts, 201. extension of business, new certificate on, 311 extension of corporate existence, 211 failure to organize, license revoked, 118 false certificate or report of ofBcer, liability, 195 first meeting of subscribers, 76 formation of, for what purposes, 18 fuU liability companies, 3, 289 liability of stockholders, 12 general powers of, 20 guardian not personally liable for debts, 201 hot-water companies, 65 948 GENERAL INDEX. ^gfufpageT BUSINESS ACT— Contimied. increase and reduction of capital stock. See Capital Stock. increase of number of shares of stock, 176 indebtedness, amount of, 199 issuing bonds, 165 for what, 169 liability of stockholders of full liability companies, 12 license, issue of by secretary of state, 74 license revoked, when, 10, 118 limited liability companies, 3, 12, 290 individual liability of stockholders, 291 "limited" to be used in corporate name, 290 penalty for omission, 290, 291 loans to stockholders, 195 location of office and principal place of business, 3 change of, i meeting of subscribers, 7 names of corporations, table of, published in session laws, 121 natural gas companies, 66 commissioners to assess damages, 68 report of, 68 confirmation of, 70 compensation, 68 damages, commissioners to assess, 68 deposit by corporation, 70 map of route, 68 signing and filing, 68 power to dig trenches and lay pipe, 66 sanction of city authorities, 67 surveys, 68 office and principal place of business, 3 change of, 4 officer, false certificate or report by, liability, 195 of stockholders, contracts, 180 organization tax, 9 powers and privileges as to, 6, 20 to appoint officers and agents, 21 to borrow money, 165 to change place of business, 6 to extend period of corporate existence, 6, 211 tonave succession in corporate name, 21 to increase or reduce capital stock, 6 to issue bonds, 6, 165 to make and amend by-laws, 21 to make and use a common seal, 21 to purchase and hold real property, 21 to sue and be sued, 21 ^tofl^ag^r GENERAL INDEX, 949 BUSINESS ACT— Continued. preliminary certificate, 2 amount of capital stock, 3 fix duration of companies' existence, 3 par value of each share, 3 state object and nature of business, 3 principal place of business, 3 change of, i, 262 principal place of business, changing, 262 purposes for which formed, 18 reorganization, 13 certificate of and contents, 13, 14 of full liability as limited liability companies, 15 rganization under, 263 mode of proceeding, 263 — 265 of full liability as limited liability companies, 267 payment of capital stock, 269 proceedings necessary for, 268 when companies may reorganize, 267 scope of act, 2 shares of stock, increase of, 176 new shares of stock, distribution of, 177 proceedings to increase, vote of stockholders, 177 steam-heating companies, 65 subscriptions, book for, 7 subscription books, commissioners to open, 76 supervision and control. See JtrDiciAL Supervision and Con- teol of cobpoeations. Taxation cndeb adjustment of taxes and penalty, 246 powers as to payment, 246 amount of annual tax, 239 basis of tax, 242, 616 board of supervisors, assessment by, 229 return to comptroller, 230 capital stock exempt, 241 certiorari to review assessment, 248 collection of, 230 certificate of treasurer to comptroller, 232 comptroller to furnish list to attorney-general, 232 demand, 230 afQdavit of, 231 return of collector to treasurer, 231 sequestration of property, 232 suit by attorney-general, 232, 233 proceedings on filing petition, 232 950 GENERAL INDEX. ^tofl^pZer BUSINESS ACT—Continued. Taxation Under — Continued. comptroller : COMPTBOLLEK : settlement of tax by, 248 review of, 248, 257 • examining books and fixing tax, 243 issuing subpoenas, comptroller may, 244 failure to obey, punishment, 244 evasion of law, duty to attorney-general and comptroller, 259 how assessed, 222 how tax paid, 231 how tax stated and collected, 229 return of board of supervisors, 230 Land of Corpobation : how taxed, 241 officers to deliver statement, 218 to assessors, 218 to comptroller, 221, 223 what must show, 242 penalty for failure to furnish, 221, 238, 243 V suit for, 222 payment of illegal tax, 257 readjustment of accounts, 257 . review of action by comptroller, 257 Keal Estate of a Corpobation : how taxed, 241 Settlement op Tax : by comptroller, 247 interest, 247 notice, 247, 248 warrant for collection of taxes, 258 how enforced, 259 when issued, 258 what companies liable to taxation, 211 when comptroller may fix amount, 242 when corporation taxable, 211 when tax to be paid, 241 • BUSINESS; extension of, new certificate, 310, 311 filing of amended certificate, 311 principal place of certificate, as to, 615 change of, 614 filing amended certificate on, 614 number of places of, 613 taxation at. 615. 616 ^ttfhfpateZ' GENERAL INDEX. 951 BUSINESS AND PRINCIPAL OFFICE, LOCATION OP. See Loca- tion OF Business and Pbincipal Office. BUSINESS PROFITS: loss of, not grounds of damages in condemnation proceedings, 530 CALLS. See Stock, Capitaii. sufflcient notice that tlie requisite subscriptions have been re- ceived, 630 CAPITAL STOCK. See Stock, Capital. certificates of, 6 diminution, 6 increase of, 5 increase of, fraud in, 509 statement of increase, 5 meaning of term, 73 shares of, defined, 73 CASH: payment of capital stock, to be made in, 141 representation as to, construction of, 142 CERTIFICATE : amended certificate, filing of, 613 on change of place of business, 614 CERTIFICATE OF INCORPORATION, 70, 115, 116, 632, 670 copy of, to be evidence of incorporation, 632, 633 evidence of legal residence, 633 conclusiveness, 633 extrinsic evidence, 634 filing copy, 116 what to contain, 70 CERTIFICATE OP REPORT FALSE: liability of ofBeers for, 195 action to enforce, 197 CERTIFICATE, PRELIMINARY. See Business Act. required by Business Act, 2 CERTIFICATES OP STOCK, 6. See Stock, Capitai,. CERTIORARI. See Taxation of Cobpobatobs, Dbtebmination OV COMPTEOLLEB. to review comptroller's determination of tax, 248, 249 CHANGING PRINCIPAL PLACE OP BUSINESS, 262. 952 GENERAL INDEX. ^t'SZZeT CHAETEB : action to forfeit, 444 by whom to be brougiit, 444 forfeiture of action for, triable by jury, 449 and surrender of, 118 for nonuser, 663 grounds for, 445 parties in action, 447 non-performance of conditions of, 523 riglit to repeal, 663 CLASSIFICATION OF CORPOBATIONS, 288. COLLATERAL SECURITY: person holding stock is hot personally liable on, 649 COMBINATIONS OF CORPORATIONS, 39 trusts illegal, 39 COMITY : effect on powers and privileges of foreign corporations, 26 COMMISSIONERS : to ascertain damages, 525, 526 compensation, 526 oath of office, 526 proceedings of, 526 To Open Books. certificate of incorporation, 116 what shall include, 116 report of, 115 COMPENSATION : of commissioners to ascertain damages, 526 COMPLAINT. in actions against corporations. See Actions by and Against COBPOKATIONS. COMPROMISE : offer of, m condemnation proceedings, 533 CONSOLIDATION CORPORATION ACT. business corporation law, 802-816 Act. construction of, 815, 816 when goes into effect, 816 appraisal of stock on consolidation, 810, 811 ^^ThfpaleZ" GENERAL IKDEX. 953 CONSOLIDATED CORPORATION ACT— Continued. business corporation law — Coniiniied. Business. cliange ot place of, 807, 808 extension of, 807 restriction on commencement of, 803 By-laws. adoption of, 804 what to provide, 804 change of place of business, 807, 808 consolidation of corporations, 809 agreement as to, 809, 810 to be submitted to stockholders, 810 proceedings on objection, 810, 811 property etc., transferred to new company, 811, 812- powers of, 811 rights of creditors, 812 extension ot business, 807 incorporation under, 803 laws repealed, 815, 816, 817 saving clause, 815 may hold stock in other companies, 808 PiiACB OP Business. assessment at, 808 change of place of, 807, 808 reorganization of existing corporations, 805 restriction upon commencement of business, 803, 804 short title of chapter, 802 steam heating companies, 813 Agents op may enter to cut off steam, 814 may enter to examine meter, 814 penalty for refusal, 814 must supply steam, 813 deposit may be required, 813 penalty for failure, 813 Stock, Capitaii. payment of, 806 liability of holders of, 806, 807 of other companies, may hold, 808 stockholders, liability of, 806, 807 Taxation : as to, 808 at place of business, 808 general corporation law, 792 ■954 GENERAL INDEX. Bf fences are to the pages. •CONSOLIDATED COEPORATION kGT—CmtiTVued. general corporation law — Continued. Act: construction of, 799 when takes effect, 799 action coUusively brought, stay o£, 796 additional lands, acquiring, 795 amended certificate, 794 Ceetificate : amended, 794 filing and recording, 793 to be evidence, 794 charter, forfeiture for non-user, 798 construction of act, 799 corporations of same name prohibited, 793 definitions, 792 DiBECTOES : corporation not dissolved by failure to elect, 797 to be trustees on dissolution, 797 powers as trustees, 797 Election : of directors, effect of failure to, 797 powers of supreme court over, 796 evidence, certificate to be, 794 extension of corporate existence, 798 filing and recording certificate of incorporation, 793 foreign incorporation, when may hold lands, 795 forfeiture of charter for non-user, 798 general powers, 794 to acquire land, 794 additional lands, 795 to appoint subordinate officers and agents, 794, 795 to have common seal, 794 to have succession, 794 to hold lands in other states, 795 to make by-laws, 795 . to purchase at mortgage foreclosure, 796 holding property in other states, 795 incidental powers, 795 laws repealed, 798, 800, 801 saving clause, 799 majority of managing body to act, 797 managing body, majority to act, 799 mortgage foreclosure, when corporation may purchase at, 796 names of corporations must not be same, 793 Bfa-ences are GENERAL INDEX. 955 to tile pages. •CONSOLIDATED COBPOKATION ACT— Contimied. general corporation law — Continued. POWBBS : general, 794. See Gbnebal Powees (this title) incidental powers, 795 real estate, when foreign corporation may hold, 795 short title, 792 supreme court, power over elections of, 796 may stay proceedings in action coUusiyely brought, 796 when act takes effect, 799 when may purciiase at mortgage foreclosure, 796 Stock Cobpobation Law : Act: construction of, 841, 842 when goes into effect, 842 annual reports, 829 books to be kept, 828 certificates, false, 829 liability for, 829 combinations prohibited, 823 DiEECTOBS AND OFPICEES : directors, 824 number of how increased or diminished, 825 Liability Of : for dividends not made from surplus, 825, 826 for loans to stockholders, 826, 827 for over-issue of bonds, 826 for unauthorized debts, 827 when acts of void, 825 .Elections : inspectors of, 827 oath of, 827, 828 who to vote at, when called after time of annual elec- tion, 839 false certificates, 829 liability for, 829 foreign corporation, transfer agent of to exhibit books, 839 general powers, 818 to borrow money, 818 to mortgage property, 818, 819 to reorganize, 818 laws repealed, 841, 842, 843 saving clause, 841 meeting of stockholders for increase or reduction in capital stock, 832 officers, 827 956 GENERAL INDEX. ^t'iulZ%! CONSOLIDATED COEPOKATION ACT— Conimwed. Stock Coepokation Law — Continued. purchaser at sale of property and franchise, 819 may become a corporation, 819, 820 contents of plan or agreement, 820, 821 stockholders may agree to, 822 Beceiveb : possession of, 822 suits against, 822 sale of property, 821 short title, 818 stock, capital, 830 certificate of lost, 834 issue of duplicate compelled, 834 proceedings in such cases, 835 corporation not to purchase, 830 increase or reduction of, 832 meeting of stockholders for, 832 notice to be given, 832 personal estate, 830 preferred exchanged for common, when, 833 subscriptions to, 831 must be paid in cash, 831 exceptions, 831 when payment to be made, 831 transfer of, 827 indebtedness to company, 827 prohibited, when, 834 Stockhgijdebs : how may vote, 837, 838 liability of, 839, 840 limitation of, 840 may call meeting to elect directors, when, 836, 837 who to vote at, 839 may compel execution of duplicate of lost certificate,, 834 procedure in such cases, 835 may pay proportional share of defaulted bonds, 834 may require statement of financial condition, 836 transfer agents of foreign companies to exhibit books, 839 transfer of stock, 827 indebtedness to corporation, 827 Tbanspoktation Cobpoeation Laws: Bridges. See Tubnpikes, Plank-eoads and Bbidges (this, title). certificate of completion of, 879 ^S^Z^^^^n^'" GENERAL INDEX. 957 to vie pages. CONSOLIDATED COEPOEATION ACT— Continued. Teanspobtation Coeporation Laws — Continued. bridges — Continued. construction of, 878 fast driving over, penalty, 886 obstruction to rafts prohibited, 878 penalty for fast driving over, 887 ferry companies, 844, 847 half of capital to be paid in before commencing busi- ness, 845 effect of failure to pay, 845 powers of, 845 schedule of rates to be posted, 845 gas and electric light corporations, 859 gas or electric light must be supplied on application, 863, 864 deposit of money may be required, 864 entrance of buildings to examine lights, meters^ etc., 864 Incorporation, 860 inspection of gas meters, 862, 863 inspector of gas meters, 861, 862 deputy inspectors, 862 powers, 860, 861 meters, no rent to be charged for, 865 price of gas, 865, 866 Bent : not to be charged for meters, 865 refusal or neglect to pay, 865 incorporation of ferry companies, 844 navigation corporations, 846 between additional ports, 847 capital stock, payment of, 847 ferries authorized, 847 formation of, 846 payment of capital stock, 847 pipe line corporations, 850 additional powers, 856, 857 cancellation of vouchers, 858 condemnation of real property, 852 construction, 853 construction across and along canals, 854 creeks, 854 rivers, 854 consent of local authority, 854 over Indian reservation, 855 over state lands, 855, 856 958 GENERAL INDEX. ^J^%f^^Lf^ CONSOLIDATED COEPOKATION ACT— Continued. Tbanspoktation Cokpobation Laws — Continued. pipe-line corporations — Continued. construction — Continued. through village and cities, 855 crossings, 853 highway, 853 plank-road, 853 railroad, 853 turnpike, 853 delivery ol property, 853 farm crossing and use of but not enclosed, 858, 859 fences, 858 incorporation, 850, 851 liable as common carriers, 857 location of line, 851, 852 monthly statement, 858 rates and charges, 857 receipts for property, 858 storage, 857 taxation of property, 859 use of line to be public, 857 plank roads. See Turnpikes, Plank Egad and Bbidges (this title). highway labor upon line of, 889, 890 short title, 844 stage coach corporations, 847 alteration or extension of route, 848 incorporation, 847, 848 powers of, 848 Eotjte: alteration of, 848 extension of, 848 telegraph and telephone companies, 869 consolidation of, 871 incorporation, 870 Line: construction of, 870, 871 extension of, 870 dt)ecial policemen, 872 transmission of despatches, 871 tramway corporations, 848 crossings, 849, 850 incorporation, 848, 849 may acquire land by condemnation, 849 powers of, 849 turnpike, plankroad and bridge corporations, 873 Reffmeesare GENERAL INDEX. 959 to the pages. CONSOLIDATED COEPOKATION kCV—ContintiM. Tbanspobtation Cobpoeation Laws— ConimttefJ. turnpike, plank-road and bridge corporations — Continued. Act: construction of, 891 of directors prohibited, 887 when to take effect, 892 actions for penalties, 887 commissioners to lay out road, 876 consolidation, 885, 886 DiEBOTOES : acts of, prohibited, 887 when stockholders to be, 888 dissolution of, 889 encroachments of fences, 886 extension of corporate existence, 891 fences, encroachment of, 886 franchise, sale of, 885 Gates : exemptions, 879, 880 hoist-gates, 883, 884 location of, 880, 881 change of location, 880 penalty for running, 880 rate of toll, 879, 880 toll gatherers, 880 guide-posts, 883, 884 hauling logs and timber over, 886 highway labor upon line of, 889 Highways, Use of : agreement for, 874 application to supervisors, 875 hoist-gates, 883 incorporation, 873 proof of, 887 lands not originally in highway, town must pay for, 888 laws repealed, 891, 892-894 saving clause, 891 Location : of officer of corporation, 884 of road, restrictions upon, 874 logs and timber, hauling over, 886 mile-stones, 883 office of, location, 884 penalties, actions for, 887 plank-road, use of turnpike by, 877 possession of and title to real estate, 876 proof of incorporation, 887 restrictions upon location of road, 874 960 GENERAL INDEX. References are to the pages •CONSOLIDATED OOEPOKATION ACT— Continued. Tbanspobtation Coepoeation Laws — Continued. turnpike, plank-road and bridge corporations — Conlimied. EoADS : certificate of completion of, 878 change of route, 883 commissioners to lay out, 876 encroachments of fences on, 886 extension and branches, 883 surrender of, 885 width and construction of, 877 KOTJTE : change of, 883 extension and branches, 883 sale of franchise, 884 sxirrender of road, 885 taxation of, 885 exemptions, 885 toll-gatherers^ 880 towns must pay for lands not originally in high- way, 889 use of turnpike by plankroad, 877 width and construction of road, 877, 878 when stockholders to be directors, 888 ■water works corporations, 866 amended certificate, 869 condemnation of real property, 868, 869 incorporation of, 866 may contract with other towns or villages, 869 must supply water, 867 tax therefor, 867, 868 village trustees may contract for, 867 powers of, 868 survey and map, 868 COMPTROLLER : annual report to, 233, 234, 238 fixing amount of taxation, 242 CONDEMNATION OF REAL PROPERTY, PROCEEDINGS FOR: abandonmMit of proceedings, 535, 536 when may be abandoned, 536 appeal of plaintiff, 538 right of, 537 waiver of right, 537, 538 appearance of parties, 522 by attorney, 523 effect of, 523 defendant idiot, 522 ^iXTSeT GENERAL INDEX. 961 CONDEMNATION OF EEAL PEOPEETY— Contireiwd. appearance of parties — Continued. defendant infant, 522 defendant habitual drunkard, 522 defendant lunatic, 522 assent of land owner, inability to secure, 526 appointment of commissioners, 526 award to unknown owner, 539 commissioners to assess damages, 525, 526 appointment of, 526 arbitrary exercise of power, 531 award to unknown heirs, 539 business profits, loss of not element of damages, 529 compensation of, 526 deposit when payment, 530 duty to hear evidence, 629 error in admission of evidence ,529 good will, loss of, not element of damages, 529 loss of business profits and goodwill not ground of damages, 529 oath of ofBoe, 526 power of, 527 proceedings of, 526 report of, 530 award to unknown heirs, 539 confirmation, 530, 536 not affected by errors in admission of evidence, 529 opening and closing argument, right to, 529 second report, 539 confirmation of, 539 review of, 539 setting aside, 530, 531 on technical grounds, 531 stultifying, 531 rule for estimation of damages, 527, 530 appraise land at actual value, 528 depreciation of land not taken, 528 in condemnation of highway, 529 Take Into Considbeation in Fixing: noise, 530 smoke, 530 ' inconveniences, 530 conflicting claims, 539 condemnation of corporate property, 517, 518 construction of statute, 518 costs, amount of, 533, 534 additional allowance, 534 delivery of possession of premises, 535 61 962 GENERAL INDEX. ""g^TpTgeT CONDEMNATION OF REAL VROVEBTY— Continued. delivery of possession of premises — ConHnvsd. writ of assistance, 535 final order in, appeal from, 536 stay of, 536, 537 incorporeal hereditaments, condemnation of, 517 judgment, 525 * costs, when granted to defendant, 525 how enforced, 535 what to contain, 525 jurisdiction to condemn, 520 when right exercised, 520 money takes place of land, when, 540 new appraisal, when granted, 538 non-performance of conditions in charter, 523 offer to compromise, 533 petition for condemnation of property, 518, 520 notice to be annexed to, 521 service of, 521 what to contain, 518, 520 verification of, 523 Pleadings : answer, 523 what to contain, 523 verification of, 523, 524 petition, 518, 520 what to contain, 518, 520 notice to be annexed to, 520 service of, 521 verification of 523, 524 pendency of action, 541, 542 notice of, to be filed, 541, 542 possession of property, 540 giving security, 540 when immediately given, 540, 541 practice in cases not provided for, 542 proceedings to be taken, 517 commenced by petition, 518 what petition to contain, 518, 520 provisions nj^de applicable to, 524, 525 repealing clauses, 542, 543 review of, 538 terms defined, 517 title of act, 516 when takes effect, 516 trial of issues, 524 unpaid taxes, 540 when courts will not interfere, 531 Beferences are GENERAL INDEX. 963 to the pages. CONSTITUTIONALITY OF STATUTE, 239 CONSOLIDATION OF CORPORATIONS, 270 abatement and revival of actions, 279 agreement of directors, 270, 271 approval of stockholders, 283, 285 business of new company, 288 consent of state, 274, 276 consent of stockholders, 276, 277 conveyance of patent, 278 validity of deed, 278 effect of, 271, 273 franchises of new corporation, 286, 287 illegal combinations, 279 agreement not to compete, 282, 283 combinations as to selling price, 282 contracts to form monopoly, 281, 282; trusts, 279 cotton-seed oil trust, 280, 281 gas trust, 281 sugar refinery trust, 280 trust certificates, 279 liabilities of new corporation, 278, 286 liability of stockholders, 287, 288 new corporation, franchises of, 286, 287 liabilities of, 278, 286 powers of, 286 privileges of, 277, 286 rights of, 277, 286 obligations of old company, 287 on rescission of agreement, 289 powers and liabilities of new corporation, 286 privileges of new corporation, 286 rights of new corporation, 277, 286 rights of creditors, 287 suit to restrain, 273, 274 when completed, 285 CONTRACTS : implied, 39 in restraint of trade, 475 actions on, 475 invalidity of increase of capital cannot be set up to defeat liability of stockholder, 176 power to make, 39 idtra vires, 24, 25 estoppel, to set up defence of, 483 suit on, 483 964 GENERAL INDEX. ^il'th^p^et ■CONTRIBUTION AMONG STOCKHOLDEES : enforced by creditors, 631 COKPOKATE EXISTENCE : extension of duration, 211 CORPORATE NAME, 4 change of, 71 application to court for, 71 petition and notice of application, 71 power of court to order change of, 72 discretion of court, 73 not to affect pending suits, rights or libailties, 72 when to take effect, 72 infringement of, 70 selecting, method of, 121 CORPORATE PROPERTY : condemnation of, 517 CORPORATE REAL ESTATE : proceedings for the sale of, 544, 549 hearing of application, 546 appointment of referee, 546 notice of, 646 order, 546 application for, 546 when may be opposed, 546 provisional, 547 ! insolvent corporations, 547 notice to creditors, 547 instituted by petition, 544 contents of petition, 545 jurisdiction of court to order sale, 547 practice in cases not provided for, 548 service of notice, 548 how made, 548 when to be taken, 544 CORPORATIONS : manutactuitog, how formed, 573, 574 COSTS : attachment against directors for, when, 449 In condemnation proceedings, 525 additional allowance, 533, 534 amount of, 533 •SWW;?'f^Lr^ GBNEEAL INDEX. 965 CKEDITOBS : can enforce contribution among stockholders, 631 meeting of to be called by receiver, 55C not affected by a resolution authorizing forfeiture, 630 remedy against stockholder, suspended whe'n, 208, 209 DAMAGE : commissioners to ascertain, 525 for non-payment of promissory note by corporation, 488 loss of good-will and business profits not element of, 529 measure of for refusal to issue stock, 150 money takes place of land, when, 540 recovery of by corporation for transfer under forged power, 198, 199 rule for estimating, 527, 530 Taken into Oonsidebation in Estimating in Condemnation Peoceedings : inconveniences, 530 noise, 530 smoke, 530 DEALINGS OP COEPORATION, 45, 54 execution of promissory notes, 47 endorsement of corporate paper, 48 insolvent company, judgment note of, 47 parol evidence or show instrument of corporation, 54 proper method of, 48, 54 executed by agent, 52, 53 personal liability, 52 executed by president, 50, 51 executed by treasurer, 51, 52 use of the word " as " 53 presumptions of validity, 45, 46 when act void, 45 DEBTOR : examination of by receiver, 432 DEBTS : meaning of, 294 DECEPTIVE AND FALSE STATEMENTS: liability of directors for, 133 DEFECTIVE ORGANIZATION : effects of, 73, 74 DEFECTS IN ORGANIZATION: estoppel to set up, when, 484 966 GBNEKAL INDEX. ^^%ZZZ' DELEGATION OF POWEK TO AGENTS, 60 DEMAND : ot taxes by collector, 230 affidavit of, 231 necessity for, 231 DEPOSIT : when payment, 530 DESCEIPTIO PEESONAM; adding to instrument, effect of, 50, e* seq DISCONTINUANCE : by sale of property and franchise, 31 DIBECTORS : absence fr6m meeting ot board, 513 assent to proceedings, presumed when, 513 accounting, suit ot attorney-general to compel, 506 action by stockholders against, for mismanagement, 468 annual election of, 209 how and where held, 209 as trustees on dissolution, 137 attachment against for costs, when, 449 authority ot, 127 breach ot trust, 137 action for by corporation, 137 stockholder may maintain when, 137 applying corporate property to payment ot individual debts, 137 cannot recover tor services in absence of by-law providing there- for, 114 where services rendered outside scope ot duties, 115 care required ot directors, 130 gross negligence, liability for, 130 compensation ot, 128 auditing bill, 128 deceptive and false statements, 133 degrees of^jegligence, 131 delegation of authority, 136, 137 , duty of directors, 8, 9, 127 election of, 7 annual election, 8, 121, 123 acceptance, 123 at first meeting ot stockholders, 7 voting by proxy at, not permitted, 8 References are GENERAL INDEX. 967 to the pages. DIKECTOES— Continued. election of — Continued. cumulative voting, 8 voting pledged stock, 8 eligibility, 8 failure to elect, 210 fault of officers, 210 failure to elect at annual meeting, 8, 123 false and deceptive statements, 133 first board of, how elected, 7 frauds and misconduct of, 510, 512 remedy for, 512 guilty of misdemeanor in declaring dividends, when, 195 holding over, 8, 123, 124, 210 knowledge of affairs of corporation, 513 presumptions as to, 513 liabilities of, 127 criminal, 138, 197 on failure to pay capital stock, 141 for abuse of trust, 502 for acts of officers, 131 for debts, where declare dividends for insolvent corporation, 195 lor failure to file annual report, 183 for false certificate or report, 196, 197 action to enforce, 197 criminal liability, 197 for false and deceptive statements, 133 for loss, 131, 132, 135 where engaged in unlawful business, 136 for loss through gross neglect, 502 for misrepresentations, 133, 134 in prospectus, 134 for money voted themselves in addition to regular salary, 502 for neglect of duty and breach of trust, 132 remedy for, 132 for ordinary neglect, 136 for use of funds for unauthorized purpose, 502 for violation of duty, 502 to creditors, 135, 136 when ended, 136 to stockholders, 135 to parties injured by fraudulent breach of trust and neglect of duty, 132 remedy for, 132 unauthorized business does not entail, 136 when liability accrues, 297 misconduct and frauds of, 511 968 GENERAL INBEX. ' ^^fgrp^leT DIRECTOES— Contimied. misconduct and frauds of — CorUinv^. action for, 498 misrepresentations, liability of directors for, 133 number of, 121, 138 of opera companies, etc., 138 presence at meeting of board, 513 ■• presumed assent to proceedings, 513 presumption of knowledge of affairs of corporation, 513 proper parties defendant where they connived at default of ofSoers, 127 quorum of, 139 relation to corporation, 136 bailees, 136 resignation of directors, 8, 9, 129, 130 service upon, of notice of injunction, 514 failure to disclose, 514 suits against. See Judicial Supeevision and ConteoIi. tenure of offloe,129 " or " construed to mean " and," 129 DISSOLUTION OF COEPOBATION, 664 a matter of law, 306 Attoenex G-bneeal : action by, for, 449 discontinuance of, 449 when must bring action, 456 Appointment op Eeoeivee. See Reoeivees (this head) effects of, 338 assets fund for payment of debts, 303 duty of trustees or directors to convert assets into money, 304 attachment against directors for costs when, 449 by failure to elect trustees, as to, 558 by legislature, 302 Cebditoes : bringing in, 454 failure to come in, 455 making themselves parties, 454, 455 misreading statements of receiver, 455, 456 remedy on, 308 discontinuance of action for, 449 evidence in, 452 officers and agents compelled to give, 452 Effect of : at common law, 308, 309 on property, 310 %f;«1e"r' GENEEAL INDEX. 96& DISSOLUTION OP OOEPOEATION— Coraimnet?. Effect ov— Continued. on suit pending, 310 form of judgment, 449 insolvency, meaning of term, 389, 390 Interests of stockholders, 307 Injunction : against action by creditors, 452 against corporation, 456 illegal business, 458, 459 notice of application, 458, 459 requirements of, 457 suspension of business by, 457, 458 restraining removal of treasurer, 459 against stockholders, 454 restraining action to gain preference, 453 staying suit, 453 when granted, 450 involuntary dissolution, 371-461 action to dissolve, 376, 377 by attorney-general, 443, 444 grounds for, 377, 385, 386 pleadings, 377, 378 parties, 379 when terminated, 379 who may bring, 380-382 action to forfeit charter, 444 by whom to be brought, 444 grounds for annulling charter, 445 leave of court to sue, 445 application for, 445 questions passed upon, 446 application for leave to sue, 445 decree of sequestration. See Sequestbation (this head), effect of, 438 DiBBCTOBS : liability to recover on failure to pay debts, 442 distribution of corporate property, 438 effect of dissolution, 379, 380 employees' salaries, 440 attorney and counsel fees, 440, 441 excusing forfeiture, 404 grounds for dissolution, 377, 385, 386 abandonment of business, 400 accidental negligence or mistake, when, 403 breach of trust, 386, 387 970 GEifEEAL INDEX. Beferences are to the pages. DISSOLUTION OF CORPORATION— Coraimaed. involuntary dissolution — Contirmed. grounds of — Continued. change of business, 387 death of members, 387 failure to do business, 389 failure to elect officers, 388 failure to file return, 389 failure to organize, 403 failure to pay debts, 389 failure to perform duty, 404 failure to perform implied conditions, 404, 406 forfeiture of franchise, 390 excusing, 404 by misfeasance, 394 by neglect, 392 by non-feasance, 394 by omissions, 391 by wilful abuse, 393 By Violation of Charter: where charter imposes certain obliga- tions, 391 where charter provides for, 390 where charter raises implied conditions, 391 where some general statute violated, 391 how forfeiture ascertained, 379 — 398 general assignment for benefit of creditors, 404 misuser of franchise, 406, 408 non-compliance with organic act, 386 non user of franchise, 406 — 408 surrender of charter, 408 * inferred when, 408 suspension of business, 400, 401 for a year, 402, 403 what amounts to, 402 waiving forfeiture, 408, 409 interest adjusted on, 439, 440 judgment of dissolution, 438 jurisdiction to dissolve, 382 — 385 leave to sue, 445 action to vacate charter. See Ohaeteb, FobpbittjeEi triable by jury, 449 application for, 445 granted ex parte, 446 improperly granted, effect, 447 notice of application, 446 questions passed upon, 446 '^iXf^'aleT GENERAL INDEX. 971 DISSOLUTION OF COEPOHATION— Con lidity of contract, 176 on lease, 296 fixing date of lease, 296 to creditors, 295 • to creditors on failure to pay capital stock, 141 to laborers, 650 joint and several, 650 who are laborers, 650 to servants, 296 when accrues, 297 where corporation exercises banking powers, 663 loan to, prohibited, 195 making parties to action, 436 bringing in, 436 voluntary appearance, effect of, 436, 437 may maintain action for breach of trust, when, 137 meeting of, in manufacturing corporations, 653-655 how called, 653 organization and conduct of, 654 Of Manupactubing Cokpobations : responsibility, 559, 560 Peesonal Liability: action by one to enforce liability of another, 651 right to examine account book, 178 right to sue, is general, 296, 297 separate actions against to enforce liability, 437 suits against, 645 suit for penalty, 645 within what time to be brought, 645 suits by, 645 voluntary appearance in action, effect of, 437 SUBSCRIBERS : first meeting of, 76 SUBSCRIPTIONS : book for, 7 SUBSCRIPTION ^OOKS: commissioners to open, 76 SUMMONS FOR FOREIGN CORPORATION: service of, 493 how made, 493, 494 by publication, 494 on officer outside of domlcil of corporation, 494-496 ""tfThTproer GENERAL INDEX. 1019 «UPEEINTENDENT : power to bind company for supplies, 44 SUPERVISION AND CONTROL. See Judicial Supebvision and Con- trol: suspension or removal of officer, 460 SURRENDER AND FORFEITURE OP CHARTEK, 118 SUSPENSION OF CORPORATION, 502,^ 503 TABLE OF NAMES OF CORPORATIONS, 121 publication in session laws, 121 TAX: organization, 117, 212 TAXATION OF CORPORATION, 211-260 adjustment of taxes and penalties, 246 proviso as to payment, 246, 247 Settlement of : as to, 248 interest on, 248 notice of, 248 review. See Detehmination of Compteollee : what covered, 246 affidavit to statement, 219 who may make, 223, 224 amount of, fixed by comptroller when, 242 annual report to comptroller, 233 dissatisfaction of comptroller, 243 basis of computation, 243, 244 when may issue subpoenas, 244, 245 punishment for failure to obey, 245, 246 estimate and appraisal of secretary, 234 certificate of appraisal, 234 copy of oath, 234 failure to make, 242 examining books and fixing taxes, 243 for one year, 238 report of comptroller to governor, 238 penalty for, 238, 243, 244 what must state, 242 when to be made, 233 when dividends have not been declared, 233, 234 annual tax, 239 amount of, 239, 240 assailing tax, 237 1020 GENERAL INDEX. Bef fences are io the pages. TAXATION OF CORPORATION— CoMimiterf. at place of business, 615, 616 basis of, 242, 616 capital stock employed, 242 assessed at actual value, 215, 224 ascertaining value, 215, 225 rule for, 216, 225 * loss of, no deduction for, 228 nominal amount paid in, 216 paid in, or secured to be paid in, 226 surplus earnings and net profits not included in, 21X what is, 214 capital stock exempt, as to, 241, 242 commuting taxes, 228 application for, 228 on personal property, 228, 229 on real estate, 229 COMPTBOLLBB : action of, reviewed in superior court, 257 county taxes, 235, 236 deduction of indebtedness, 226 determination of comptroller, 248 review of, by writ of certiorari, 248, 250 appeal to general term, 255, 256 to court of appeals, 256, 257 form of writ, 252 form of petition, 250, 252 not apply to assessments for local improvements, 249 notice of granting, 252 parties to, 252 prior application to assessors, 250 return of writ, 253 assessment roll and affidavit, failure to return, 255 evidence as to value, 255 selling price, 255 hearing on return, 254 proper practice, 254, 255 inconclusive, 254 • power to take evidence, 254 time of application, 250 to whom to be issued, 253 when to issue, 252, 253 errors in assessment, 220 correction of, 237 power to correct, 220, 221 ^^flS^Z^:" GENERAL INDEX. 1021 TAXATION OP COEPORATION— Confewed. estimate and appraisal of secretary, 234 certificate of, 234 copy of oath, 234 exemptions from, 224, 240, 241 capital stock, 242 gas light company, 241 ice company, 241 evasion of law, 259 duty of attorney-general and comptroller, 259, 260 for state purposes, 212 foreign corporations, taxation of, 213, 236, 237 carrying and manufacturing within state, 236 franchise, taxing, 217, 236, 237 property used in connection with, 217 to what franchises confined, 237 how assessed, 222, 223 how enforced and paid, 231 action by attorney general in supreme court, 232 proceedings on filing petition, 232 " sequestration of property, 232 . action in other courts, 233 ^ certificate of comptroller to treasurer, 232 comptroller to furnish list to attorney-general, 232 return of collector to treasurer, 231 warrant tor collection of tax, 258 afadavit of demand, 231 how enforced, 259 when issued, 258 how stated and collected, 229, 230 demand by collector, 230 affidavit of, 231 necessity for, 231 return of board of supervisors to comptroller, 230 special provisions for certain counties, 230 IiiiiEGAii Tax : payment of, readjustment of accounts, 257 improper assessment, 220 correction of, 220 hearing on, 220 limitation of taxation for state purposes, 213, 214 mode or system of taxing corporations, 214, 222, 223 change of statute, 214 of corporations in cities, 218 moneyed corporations, what are, 214, 215 1022 GBSTEKAL INDEX. Befermces are to the pages. TAXATION OF COEPO RATIONS— ComimMed municipal taxes, 235, 236 non-resident corporations, 217, 218, 236 of water-power of, 213 Ofpicees to Delivbb Statemknts : penalty for failure to furnish, 221, 222 power of courts to impose otfier penalties, 222 suit for, 222 to assessors^ 218 not binding on assessors, 219, 220 omission to furnish, 219 what to contain, 218 to comptroller, 221 organization tax, 117, 212 personal property, how taxed, 212, 241, 242 property without state, 217 provisions as to payment, 246, 247 Eeal Estate : how assessed, 212, 226, 227, 241, 242 reduction of, 228 application for, 228 on personal property, 228, 229 on real estate, 229 rule as to taxation, 226 change of, 226 SuBPLiJS Pbopits : assessment of, 227 certificates to stockholders for, 227, 228 what are, 227 system of taxing corporations, 214 change of statute, 214 taxation for state purposes only, 235 warrant for collection of tax, 258 how enforced, 259 when issued, 258 what corporations liable to, 214 when increase not equal to expenditures, 216, 217 exemptions, 216 t when to be paid, 241 when corporation taxable, 211, 212 TENANT FOR LIFE : right to receive dividends, 192, 193 TORTS AND CRIMES: committed after expiration of charter, 475-480 \ Seferences are GENERAL INDEX. 102S to the pages. TORTS AND GBIMES— Continued. committed while corporate property in hands of receiver, 342 liability of corporation, 342 TREASURER : indorsement of accommodation paper, 43, 44 of foreign corporation, 44 power to bind company, 44 proper method of execution of corporate paper by, 51, 52 TRIAL OF ISSUES: in condemnation proceedings, 524 TRUSTEES. See Manufactueing Act. accounting, action by attorney-general to compel, 506 action by stockholders against for mismanagement, 468 authority of, 626 board of, 621 quorum, 621, 622 character and powers of, 620 compelling to execute trust, 451 designation and appointment of officers, 625 dissolution by failure to elect, as to, 558 election of, 616, 617 eligibility, 623, 624 equity Will not Interfere to restrain when, 501 failure to elect, 625 False Cbetii'igatb ob Rbpobt : limitation of liability, 197 holding over, 625 individual liability for failure to make annual report, 640 liability of, 626 for failure to make or file annual report, 640 642 does not survive, 643 ex delicto, 643 extent of liability, 642, 643 for costs when, 643 for false certificate or report, 196 action to enforce, 197 for what debts liable^ 643, 644 joint and several, 643 practice and pleading, 643 when action to be brought, 645 when not incurred, 643, 644 for payment of dividends when company insolvent, 646 where indebtedness exceeds capital stock, 655, 656 1024 GENERAL INDEX. ^gT^^'aleT TUVST'E'ES— Continued. liability of — Continued. •where indebtedness exceeds capital stock — Contimued. action against, 656 limitation of action, 656 proceedings, 657 making by-laws, 628 force and effect of, 628 making calls on stockholders, 627 enforcing payment, 627 • not personally liable for debts of company, 201, 649 not personally liable on stock held as such, 201, 649 number of, 577, 621, 622 determining number, 623 how increased, 622, 623 of benevolent society, 451 contract for legislative appropriation, 451, 452 of educational corporations, science and arts, 452 of religious corporation, 451 removal of, 451 on dissolution, 664 powers of, 664 persons holding stock as, are not personally liable there on, 649 powers of, 559, 624 to purchase property, 624 to issue bonds in payment therefor, 624 to bind stockholders thereby, 624, 625 removal of, 451 restraining removal of by injunction, 459 to be annually elected, 557 vacancy, 557 how filled, 557 TRUSTS ILLEGAL, 39 ULTRA VIRES : contracts that are, effect of, 24, 25 executed contracts enforced, 25 executory not enforced, 25 pleading ultra vires, 26 rejjdered valid by acquiescence, 26 USURPATION OF POWERS AND FRANCHISES : qua warranto lies for, 24 UNAUTHORIZED BUSINESS : directors not liable for loss when engaged in, 136 VERIFICATION OF RECORD, 9 ^tfthTpageT^ GENERAL INDEX. 1025 VISATAKIAL POWERS: effect of Code on, 505 "WAGES : weekly payment of, 549-551 constitutionality of statute, 551 penalty for violation, 550 defences to action for, 550 proceedings to enforce, 551 WEEKLY PAYMENT OF WAGES. See Wages, Weekly Payment of. WIDOW : compensation to be made to, 528 WEST VIKGINIA ACT : •acltnowledgment of subscriptions to stock, 777 actions and process against, 752 power of attorney to accept service, 784 service of attachment, 752 annual report, 767 books, papers, etc., 767 book of accounts, 769 by-laws, 769 building and loan and homestead associations, by-laws and arti- cles of government 789 for what purposes formed, 787 liability of stockholders of, 788, 789. limitation of funds, 787 rights, powers and privileges of, 787, 788 certificate of incorporation, 764 certified copy as evidence, 782 delivery on sale vests title, 764 effect of Issuance of, 778 lost certificate, 764, 765 official copies of, 782 publication of. 782 recording of, 782 in county clerk's office, 783 secretaries' fees, 782 surrender and transfer, 764 when issued by secretary of state, 777 Chabtees : former to be deemed extinct when, 757 right to alter or repeal, 757, 758 condemnation of lands under, 750-752 cannot occupy streets of town without its consent, 752 how much land may acquire, 751