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probably it must be, that the city had no legal right
to grant the license to store or keep the wagon in
the street, still its liability for the particular injury
which caused the death of Cohen cannot, we think,
be sustained upon proof of the mere fact of grant-
ing the license. That fact was not the immediate
cause of the injury which resulted from the negli-
gent driving of the defendant Muller and the in-
sufficient manner in which the defendant Marks had

tied up the thills of his wagon. If the thills had
been securely and properly fastened up, as they ought
to have been, the fastenings would not have been
broken by the blow which turned the wagon parti-
ally around and threw down the thills with such
violence as to occasion the fatal injuries. To make
the city responsible for the injury, some evidence
tending to show knowledge on its part or notice in
some form of the insecure or careless mode in which
the wagon was stored in the street must be shown.
The license did not authorize the negligence
which caused the death.
It was at most
remote but not an immediate cause of the
injury; and it cannot be held as matter of law
that the license authorized any such negligence
as it is clearly apparent the defendant Marks was
guilty of in his mode of using the privilege
sought to be conferred by the license. If notice or
knowledge of the improper mode of tying up the
thills had been brought home to the public author-
ities the case would fall within the principle of
Hume v. Mayor, 74 N. Y. 273; and Hume v.
Mayor, 47 id. 639. The court at the trial held in
substance that the city had no power to license the
use of the street for the storage, and that by ille-
gally authorizing it, the city contributed to the cre-
ation of a public nuisance, and was therefore
jointly liable with the other defendants for the in-

In many instances a spirited road horse will pass in safety an obstruction that a quiet farm horse will scare at; a leaf, a piece of paper, a lady's shawl fluttering in the wind, a stone or a stump by the way side, will sometimes alarm even a quiet horse. I may mention, by way of illustration, that the severest fright I ever knew a horse to feel was caused by the sunlight shining in through the windows of a bridge upon the floor.' If a farmer may not have a barrel of cider, a bag of potatoes, a horse power, a wheelbarrow or a wagon standing on his own premises by the side of a highway, except at the risk of having his whole estate swept away in an action for damages occasioned by the fright of an unruly horse, the vocation of agriculture will become perilous indeed. * * * As we understand the law, there is an absolute right in a property owner to use a portion of the public highway for certain purposes for a temporary period, and in a reasonable manner, and this right may be exercised in derogation of the right of the traveling public. The substance of the doctrine is, that the mere exercise of the right of obstruction for a lawful purpose imposes no liability to pay for damages resulting therefrom. It must be an unreasonable or negligent exercise of the right in order to impose liability. To say that a man way lawfully deposit brick and lumber on the highway, in front of a lot on which he is erecting a building with these materials, and yet if their presence has a tendency to frighten horses, and some over-sensitive horse does take fright at them, and run away and cause damage, the person depositing the materials is guilty of negligence, and shall pay the damage, is merely giving a right with one breath and taking it all away with another. In practical effect such a right would be no right at all. Any pile of bricks, stones, sand, lumber, or other building material in a street, has a tendency to frighten horses, and injury without regard to the question whether the almost any community there could always be found some horses that would actually take fright at seeing them. But that circumstance alone will not take away the right to deposit them in such a place. There must be some abuse of the right, some unusual and extraordinary mode of arranging the material such as will probably produce fright with ordinarily gentle and well trained horses before it can be fairly said liability arises." See Macomber v. Nichols, 34 Mich. 212; S. C., 22 Am. Rep. 522, and note, 528.

In Cohen v. Mayor, etc., 33 Hun, 404, the city of New York granted to M. a license to store his business wagon, when not in use, in the street in front of his grocery store. M. kept the wagon near the curb with the thills turned up and fastened with a string. A passing wagon struck the hind wheel of Marks' wagon, threw it around toward the sidewalk and broke the string which held up the thills, thereby allowing them to fall down upon and kill the plaintiff's intestate who was passing upon the sidewalk. Held, that the city was not liable. The court, by Davis, P. J., said: "If it be conceded, as

direct cause of injury was or was not some special negligence of the licensee to which the city made no direct contribution, and of which it had no notice or knowledge. This we think was going beyond the established principles governing such cases, for it would follow from such a rule that every mistaken excess of power authorizing the use or occupany of a public street would charge the city with liability for any and every act of negligence every person using the street might be guilty of. We think the true rule in such cases is that where the injury clearly results from the negligent mode in which the licensee exercises the privilege granted to him, which mode is not part of the license or grant, there must be some proof of negligence showing permission to use or acquiescence in the use of the mode after notice or knowledge on the part of the licensor. Brady, J., dissented.

A singular point of evidence arose in Morris v. State, 95 Ind. 73. To an indictment for sending a threatening letter to extort money the defense was that it was a joke. The parties were intimate friends, and their was evidence tending to prove

out.

The question of intent, in a criminal prosecution, is one of fact and often difficult to ascertain. The writing and sending of the letter set out in the indictment might, prima facie, import an intent to blackmail. Yet the circumstances under which it was written, and the previous relations of the par

purpose of strengthening or rebutting the presumption of crime. The evidence offered by the appellant, and excluded by the court, would have tended to show that the letter was not sent with the intent to extort money."

COMPENSATION OF HUSBAND WHO ACTS
AS WIFE'S AGENT.

IN

N the case of Kingman v. Frank, the Supreme Court of New York decided on Oct. 6, 1884, that where a married woman having a separate estate or business, employs her husband to manage the same, and agrees to pay him a stated compensation for his services, a chose in action in his favor against her is created, which on her failure to pay can be reached by a judgment creditor of the husband; and this case suggests the subject of the husband's compensation generally when he acts as his wife's agent.

the defense and establish the defendant's good character. Held, that evidence that the receiver shortly before had played severe jokes upon the defendant was erroneously excluded. The court, by Hammond, J., said: "At the trial the appellant proposed to testify in his own behalf that a short time before sending the letter to Hart several 'roughties, might be considered by the jury, either for the jokes,' as they are termed, the character of which are set out in the bill of exceptions, were perpetrated on him by Hart and Deter. The evidence on the objection of the State was excluded. In this there was error. The fact of Hart and Deter playing 'rough jokes' on the appellant would not of course justify or excuse the writing of a letter with intent to extort money. But as bearing upon the question of such intent, it was proper for the jury to know the previous relations of the parties whether their intimacy and conduct toward each other had been such as to make it reasonable that the transaction, upon which the indictment was based, was intended as nothing more than a jest. The gist of the offense charged in the indictment was the sending of the letter to Hart with intent to extort money from him. Unless such intent existed in the mid of the appellant at the time of sending the letter there could be no crime. If the letter was sent merely in sport to give annoyance, but with no intent to extort money, however reprehensible the act may have been, it would not constitute the offense of blackmailing. The jury should have had the benefit of all evidence bearing upon the question of intent. Some of the 'rough jokes' which the appellant proposed to prove had been played upon him by Hart and Deter were quite as culpable as the sending of the letter complained of, if the sending of it was by way of joke and without intent to extort money. The evidence offered, but excluded by the court, would have given strength and probability to the defense relied upon by the appellant. It is true that in criminal cases evidence of collateral matters is usually inadmissible. An exception to the rule exists however where such collateral matters bear upon the question of intent. Whart. Crim. Ev., § 46; Best Ev. 264; 1 Greenl. Ev., § 54. To constitute a crime an evil intent must combine with an act. 1 Bish. Crim. L., §§ 204, 285 et seq. In section 287, the learned author says: "The doctrine which requires an evil intent lies at the foundation of public justice. There is only one criterion by which the guilt of men is to be tested. It is whether the mind is criminal. Criminal law relates only to crime. And neither in philosophical speculation, nor in religious or moral sentiment, would any people in any age allow that a man should be deemed guilty unless his mind was so. It is therefore a principle of our legal system, as probably it is of every other, that the essence of an offense is the wrongful intent, without which it cannot exist.' In the absence of a felonious intent to extort money from Hart at the time of sending the letter, the appellant could not be guilty. If, without such intent, the letter was sent only for the mischievous purpose of annoyance, the crime charged would not be made

1. General Rule.- A husband may, as his wife's agent, manage her separate property or separate business (1) with or without compensation; (2) but neither he nor any creditor of his has in the absence of special agreement any right in the property managed, earned or accumulated through his agency.(3) Partnerships between husband and wife are not included within this discussion.(4)

2. Express Contract.-Contracts between husband and wife are in most States void,(5) and therefore there is usually no express contract by a wife to pay her husband for his services. (6) In cases when such contract can (7) and does exist, she may even be made his garnishee; (8) but in the absence of such contract neither he nor any creditor of his has any right against her or her property.(9)

3. Implied Contract. There is no implied contract that a wife will pay her husband for his services. (10) His first duty is to support her and his

(1) Schouler Husband and Wife, §§ 277-282.

(2) See Lewis v. Johns, 24 Cal. 98, 103; Gage v. Dauchy, 34 N. Y. 293, 299; Rush v. Vought, 55 Penn. St. 437, 445; Webster v. Hildreth, 83 Vt. 457, 458. (3) See fullest discusion, Miller v.

97.

(4) Except as below.

Peck, 18 W. Va, 75, 79

(5) Scarborough v. Watkins, 9 B. Mon. 540, 545. (6) Gage v. Dauchy, 34 N. Y. 293, 297, 299; Abbey v. Deyo, 44 Barb. 874, 880.

(7) See 29 Albany Law Journal, 285.

(8) Lewis v. Johns, 24 Cal. 98, 103; Keller v. Mayer, 55 Ga. 406, 410; Kingman v. Franks, N. Y. Sup. Ct. Oct. 6, 1884, 26 D. Reg. 937; Miller v. Peck, 18 W. Va. 75, 100. (9) McIntyre v. Knowlton, 6 Allen, 565, 567; Webster v. Hildreth, 83 Vt. 457, 458; infra n, 19. (10) Lewis v. Johns, 24 Cal. 98, 108.

family, (11) and in helping her to make her property productive he is but discharging this duty, (12) and is presumedly amply compensated with the home and support she allows him. (13) Moreover, as one's talents and capacity to labor are not property, (14) and as therefore no debtor can be made to work for his creditors, (15) a husband who is entitled to his wife's services, may give them to her even against his creditors, (16) and may likewise give her his own labor,(17) but not his accumulations.(18)

3. Apparent or Pretended Agency. A husband may thus as his wife's agent manage her property or business without acquiring any rights in said property or business, or subjecting it to the claims of his creditors. (19) But while apparently her agent and pretending to act in that capacity, he may be conducting a business of his own under her name simply for the purpose of evading his creditors, (20) or he may be using her property as a gift to him (21) or as a loan; (22) in such cases the business is his and the remedies of his creditors against the assets thereof (11) Cooper v. Ham, 49 Ind. 393, 416; Com. v. Fletcher, 6 Bust, 171, 172; Gage v. Dauchy, 34 N. Y. 293, 297'; Abbey v. Deyo, 44 N. Y. 343, 346.

(12) Cooper v. Ham, 49 Ind. 393, 416.

(18) McIntyre v. Knowlton, 6 Allen, 565, 566.

(14) Cases cited infra nn, 15, 16.

(15) Abbey v. Deyo, 44 N. Y. 343, 347; Rush v. Vought, 55 Penn. St. 437, 445; Hodges v. Cobb, 8 Rich. 50, 56.

(16) Peterson v. Mulford, 36 N. J. L. 481, 487; Hoyt v. White, 46 N. H. 45, 47; ante § 65. He cannot give her money already earned by her, ante § 65.

(17) Miller v. Peck, 18 W. Va. 75, 99; infra n, 19.

(18) Isham v. Shafer, 60 Barb. 317, 331; Rush v. Vought, 55 Penn. St. 437, 445; Holdship v. Patterson; 7 Watts, 547. (19) Aldridge v. Muirhead, 101 U. S. 397, 399; Voorbes v. Bonesteel, 16 Wall. 16, 81; Lewis v. Johns, 24 Cal. 98, 103; Coon v. Rigden, 4 Col. 275, 287, 288; Martinez v. Ward, 19 Fla. 175, 188, 189; Keller v. Mayer, 55 Ga. 406, 409; Wells v. Smith, 54 id. 262, 264; Olsen v. Kern, 10 Ill. App. 578, 582; Langford v. Ghieson, 5 Ill. App. 362; Cnbberly v. Scott, 98 Ill. 38, 40; Bongard v. Core, 82 Ill. 19, 20; Bellows v. Rosenthal, 31 Ind. 116, 118; Cooper v. Ham, 49 id. 893, 400, citing many cases; Carn v. Royes, 55 Iowa, 650; Parker v. Bates, 29 Kan. 597; Com. v. Fletcher, 6 Bush, 171, 172; McIntyre v. Knowlton, 6 Allen, 565, 567; Merrick V. Phemley, 29 Mass. 566; Rankin v. West, 25 Mich. 200; Hossfeldt v. Dill, 28 Minn. 469; Hamilton v. Booth, 55 Miss. 60; Gloss v. Thomas, 6 Mo. App. 157; Abbey v. Deyo, 44 N. Y. 343, 346; 44 Barb. 382; Owen v. Cawley, 36 N. Y. 600, 604, 605; Smith v. Sweeny, 35 id. 234, 235; Gage v. Dauchy, 34 id. 293, 297, 299; Buckley v. Wells, 33 id. 518, 521; Knapp v. Smith, 27 id. 277, 280; Rush v. Vought, 55 Pa. St. 437, 445; Holdship v. Patterson, 7 Watts. 547; Hodges v. Cobb, 8 Rich. 50, 56; Webster v. Hildreth, 83 Vt. 457, 458; Miller v. Peck, 18 W. Va. 75, 79-97, citing many cases; Feller v. Alden, 23 Wis. 301, 304; Boss v. Gomber, 23 id. 284, 286; Dayton v. Walsh, 47 id. 118. But see Penn v. Whiteheads, 12 Gratt. 74, 80; Wilson v. Loomis, 55 Ill. 852, 354. Compare cases infra n, 28.

(20) See Hurlbut v. Jones, 25 Cal. 225; Wortman v. Price, 47 Ill. 22; Brownell v. Dixon, 37 id. 198, 208; Cooper v. Ham 49 Ind. 393, 416; Laing v. Cunningham, 17 Iowa, 510; National v. Sprague, 20 N. J. Eq. 13, 25; Knapp v. Smith, 27 N. Y. 277, 280; Woodsworth v. Sweet, 51 id. 8; Gage v. Dauchy, 34 id. 293, 298.

(21) See Dent v. Slough, 40 Ala. 518; Freeman v. Orrer, 5 Duer, 476.

(22) Glidden v. Taylor, 16 Ohio St. 509, 520.

are full. (23) So when she has no power by statute to trade, but with his consent is in a business which he conducts, (24) it is his business; (25) the right of his creditors against a business which he conducts can be questioned only when by statute she can trade alone. (26) When he has been using her property in his business, her rights are at best those of a creditor.(27) In some cases where a wife has amassed a fortune through the efforts of her husband, it has been held that a court of equity would in favor of his creditors make some apportionment (28) treat the husband and wife as it were as partners.(29) Whether the business is the husband's or the wife's is simply a question of fact, (30) the burden of proof being generally on the wife to show that the business was hers. (31) So whether there is fraud is a question of fact. (32)

4. Illustrations. Thus where a husband with his team did a great deal of work on his wife's property, and his creditors attempted to sell the crop for his debts, the court held that he could give to her the labor of himself and his beasts, and that the accretions to her property continued hers and could not be touched by his creditors. (33) Where a manufacturer of large experience failed, and then started up again with his wife's money and in her name, and made a fortune, the court allowed her her money and interest, but held the remaining profits liable for his debts.(34) Where while the wife's earnings belonged to her husband, he consented that she should trade in her own name, but took part himself in the business, the business was held his, and therefore liable for his debts. (35)

5. Statutes. In some States there are statutes expressly referring to this subject. (36)

BALTIMORE, MD.

DAVID STEWART.

(23) Brownell v. Dixon, 37 Ill. 198, 208; Gage v. Dauchy, 34 N. Y. 293, 298.

(24) National v. Sprague, 20 N. J. Eq. 18, 25.

(25) Wortman v. Price, 47 Ill. 22, 24; Erdman v. Rosenthal, 60 Md. 312, 816; Abbey v. Deyo, 44 N. Y. 843, 847; Bucher v. Ream. 68 Penn. St. 421, 426.

(26) Shackleford, 6 Bush, 149, 159. See Wortman v. Price, 47 Ill. 22, 24; Alt v. Laforette, 9 Mo. App. 91; Pawley v. Vogel, 42 Mo. 291; Lyman v. Place, 26 N. J. Eq. 80; National v. Sprague, 20 id. 13, 25; Quidort v. Perqeaux, 18 id. 472, 480; Bucher v. Ream, 68 Penn. St. 421, 426. (27) Wortman v. Price, 47 Ill. 22, 24; Glidden v. Taylor, 16 Ohio St. 509, 521; infra nn, 21, 26.

(28) Cooper v. Ham, 49 Ind. 393, 416; Com. v. Fletcher, 6 Bush, 171, 172; Glidden v. Taylor, 16 Ohio St. 509, 520; Feller v. Alden, 23 Wis. 301, 305.

(29) In Glidden v. Taylor, 16 Ohio St. 509, the wife was allowed only her money and legal interest; in National v. Sprague, 20 N. J. Eq. 13, the whole was held liable for the husband's debts; to treat them as partners would be fairer when there is really a mingling of goods, etc.

(30) Keller v. Mayer, 55 Ga. 406, 409; Knapp v. Smith, 27 N.Y. 277, 280; Abbey v. Deyo, 44 id. 343, 847; of course, her capacity to trade is a question of law.

(31) 23 Amer. Law Rep. N. S. 625.
(32) Myers v. King, 42 Md. 65, 70.
(33) Miller v. Peck, 18 W. Va. 95, 102.

(34) Glidden v. Taylor, 16 Ohio St. 509, 520, 521.
(35) National v. Sprague, 20 N. J. Eq. 18, 25.

(36) In Porter v. Gomba, 43 Cal. 165, 169; Youngworth v. Jewell, 15 Nev. 45.

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DEWEY V. ST. ALBANS TRUST Co.*

On petition setting forth that it was believed that defendant company was insolvent, a receiver was appointed and an injunction was issued restraining the trust company,its president, treasurer, and other officers, from transacting any further business, etc., and from all custody of or interference with its property, until further order. The

charter provided "that in case of the dissolution of said company," the deposits in favor of minors, insane persons, or married women, should have a preference. It did not appear that the company had lost its power to resume its business, or that it was insolvent in fact, but insolvent only in the sense of inability to meet its obligations in due course of business. Held, that there was not a dissolution of the corporation, and consequently no class of creditors could be preferred.

PET

)ETITION for the appointment of a receiver, brought by Charles Dewey, inspector of finance, to take charge of the St. Albans Trust Company. Also a petition brought by C. W. Rich, the receiver of said company, praying that the court might prescribe the order, proportion, and manner of distribution of the funds of the trust company. Heard, September Term, 1883. Royce, Chancellor, held that all the depositors stood upon terms of perfect equality, that no class of depositors was entitled to any preference over others, and decreed that the funds should be distributed pro rata to the depositors.

Edson, Cross & Start, Farrington & Post, and A. G. Safford, for certain depositors claiming priority.

Noble & Smith aud Daniel Roberts, for appellees. ROWELL, J. The charter of this trust company, granted in 1868, Stat. 1868, No. 157, provides "that in case of the dissolution of said company, by act of law or otherwise, the debts due from said company, incurred by deposits in favor of minors, insane persons or married women, such deposits having been made for married women in their own right, shall have a preference and be satisfied before any other debts due from said corporation are paid."

On August 17, 1883, the inspector of finance, pursuant to the statute in such case made and provided, applied to the Court of Chancery by petition, setting forth that he had ascertained and believed said company to be insolvent, and praying for an injunction against the same, its officers, agents, and servants, restraining it and them from all interference with or control of the books, assets, and property of said company, and for the appointment of a receiver to take charge thereof, subject to the order and direction of the court, and for such further orders and directions as to the court should seem meet.

Thereupon notice to show cause was duly issued and served, and said company appeared, whereupon no cause being shown nor objection made, the court granted an injunction restraining said company, its president, treasurer, and other officers and directors, and each and every of them, its and their agents and servants, from transacting any further business as such trust company until further order, and from all custody of or interference with the books, papers, assets, and property of every name and nature belonging to said company, except to safely keep and preserve the same until delivered to the receiver thereafter to be appointed or until further order.

At the same

time the court appointed a receiver, and upon giving

*S. C., 56 Vt. 476.

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On November 10, 1883, the receiver preferred his petition to said court, setting forth that on October 4, 1883, the court ordered that all creditors of said company should present and prove their claims to him by December 1, 1883; that under and pursuant to said order, a very large number of the creditors of said company had presented their claims with proof thereof, and that he had reason to believe that all or nearly all outstanding claims against said company would be presented, with proof thereof, within the time limited therefor; and further setting forth the provision of said charter above recited, and that a considerable number of persons had presented claims, accompanied with proof, for debts due from said company incurred by deposits in favor of minors, insane persons, and married women in their own right, and insisted that said claims should be preferred and be satisfied before any other debts due from said corporation were paid; that he had realized a considerable amount of money from the assets of said company, and expected to realize more therefrom from time to time, and that it was for the interest of the creditors of said company that the funds thus realized and to be realized should be paid and distributed to and among said creditors according to their legal rights as soon as reasonably might be; that the creditors of said company who claimed no preference insisted upon an equal and a ratable payment and distribution of said funds to and among all the creditors thereof; and praying for an order, directing him in the premises, and prescribing in what order, proportion, and manner payment and distribution should be made with reference to the demands for which preference was claimed as aforesaid and to the other debts due from said company.

Due notice of said last-mentioned petition having been given, the same came on to be heard on December 4, 1883, the parties appearing and being fully heard in the premises, whereupon it was ordered and decreed that all the depositors who had proved or might prove their claims as such stood and should stand "on terms of perfect equality of right to share in the division and distribution of the funds or assets of said company, and that no depositor or class of depositors is entitled to any preference over others," and the receiver was ordered and directed to pay out and distribute said funds and assets accordingly. From this order, some of those claiming a preference have appealed.

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I have now stated the substance of all the record discloses, and hence all there is in the case on which to base judgment.

The defendant is proceeded against as and only as an insolvent corporation, and it cannot fail to be observed that the record is exceedingly barren of facts to show its real financial condition.

It is not claimed by the appellants that this company is dissolved to the extent of losing its corporate hopelessly insolvent, and that there is such a suspenexistence; but they contend that it is absolutely and sion of its powers and ability to do business as to render it incapable of fulfilling the object and purpose of its creation, and hence that to all practicable intents it is dissolved, and that therefore the right of preferand purposes, and within the meaning of the charter,

ence attaches.

But the record does not show any such condition of things. If it be said, as perhaps it may well be, that the granting of the injunction and the appointment of the receiver imply an adjudication of insolvency,

it would still remain to inquire, insolvency in what sense?

The term "insolvency" is not always used in the same sense. It is sometimes used to denote an insufficiency of the entire property and assets of an individual to pay his debts. This is its general and popular meaning. But it is also used in a more restricted sense, to express the inability of a party to pay his debts as they become due in the ordinary course of business. It is in this latter sense that the term is used when traders and merchants are said to be insolvent; and as applied to them, it is the sense in which the National Bankrupt Act used the term. Toof v. Martin, 13 Wall. 40. So under the Massachusetts insolvent acts, the term is not construed to mean an absolute inability to pay one's debts at some future time on the settlement and winding up of his affairs; but an inability to pay in the ordinary course, as persons carrying on trade usually do. Thompson v. Thompson, 4 Cush. 127, 134. So under the English Bankrupt Act, the phrase "insolvent circumstances" is construed to mean an inability to pay in the ordinary course, as persons carrying on trade usually do. Bayly v. Schofield, 1 M. & S. 338, 349; Shone v. Lucas, 3 D. & R. 218.

Denike v. New York & Rosendale Lime & Cement Co., 80 N. Y. 599, was an action in favor of some of the stockholders of said company for a dissolution of the corporation and the appointment of a receiver and the winding up of its affairs. It was alleged and claimed, among other things, that the company was insolvent. The statutes of New York provide that "whenever any incorporated company shall have remained insolvent for one whole year * * * it shall be deemed to have surrendered the rights, privileges, and franchises granted by any act of incorporation * * * and shall be deemed to be dissolved." In denying the relief sought, the court said: "There is no finding that the property of this company was not sufficient to pay all its debts. It was simply found that it was insolvent, and that may mean simply an inability to pay and discharge its obligations as they accrue * * * in the ordinary course of its business. The plaintiffs gave evidence tending to show that the property of the company was not equal in value to the amount of its debts; and the defendant gave evidence tending to show that there was property sufficient to pay all the debs and still leave the capital nearly or quite intact. What the precise truth was as to the value of the property the referee did not determine and was not requested to determine, and hence we do not know."

So in this case we have no information whatever as to the real financial condition of this company. For aught that the record discloses, it may be insolvent only in the sense of not having been able to meet its obligations in the due course of business, a mere temporary embarrassment, and may in fact be solvent in the sense of having sufficient property to discharge all its obligations on a final settlement and winding up of its affairs.

The charter provides that the corporation shall be liable at all events, the act of God and the public enemies only excepted, for all deposits. There can therefore be no loss to depositors until the capital stock is gone; and the charter provides that when that is impaired by losses or otherwise, the directors shall forthwith repair the same by assessment.

Nothing appears to show that such an assessment would not relieve this institution from all embarrassment, and render further administration by the receiver unnecessary.

The New York cases, on which so much reliance is placed, establish the doctrine that if corporations do, or suffer to be done, acts that destroy the end and object of their creation, it is equivalent to a surrender of their corporate rights; but they do not decide that

mere insolvency, though total, is sufficient evidence of such surrender.

In Slee v. Bloom, 19 Johns. 456, the corporation had not only ceased to own any property, real or personal, but had totally ceased from acting for the space of about a year and four months. It was possessed of nothing and had abandoned the end and object of its creation, without pretense of expectation or hope of ever resuming its functions. Chancellor Kent says of this case: "It amounts only to this, that if a private corporation suffer all its property to be sacrificed, and the trustees actually relinquish their trust, and omit the annual election, and do no one act manifesting an intention to resume its corporate functions, the courts of justice may, for the sake of the remedy and in favor of creditors, who in such case have their remedy against the individual members, presume a virtual surrender of the corporate rights and a dissolution of the corporation. This is the utmost extent to which the doctrine was carried, and to this extent it is a safe and reasonable doctrine." 2 Kent Com. 311.

Penniman v. Briggs, Hopk. 300; S. C., in error, 8 Cow. 387, adopts and applies the doctrine of Slee v. Bloom. There a corporation for manufacturing purposes, established under the general act of March 22, 1811, had all its property, real and personal, sold on execution and otherwise applied for the payment of its debts, and ceased to hold any property whatever, and was totally insolvent, and had ceased to manufacture or act as a corporation in any respect, and the trustees had no power to resuscitate the company by a call on the stockholders, as their shares were paid up; and it was held that the corporation was to be deemed dissolved for the purpose of the remedy of creditors against the stockholders individually.

But the rule established by these cases is qualified by another rule.

In Brinckerhoff v. Brown, 7 Johns. Ch. 217, it is said that "it does not follow that a corporation is dissolved by the sale of its visible and tangible property for the payment of its debts and the temporary suspension of its business, so long as it has the moral and legal capacity to increase its subscription, call in more capital, and resume its business." And the court refused to carry the doctrine of Slee v. Bloom to the extent of holding that the sale of all the visible property of a corporation was of itself sufficient evidence of a surrender, when all the other material circumstances were wanting, and said that the best evidence of a surrender that Slee v. Bloom afforded was, that the trustees had virtually renounced their trust and ceased to act, and the regular annual election of trustees had been discontinued.

Bradt v. Benedict, 17 N. Y. 93, was a suit in favor of a creditor of a manufacturing corporation against a stockholder of the company to enforce his individual liability under the statute of 1811. In reviewing Slee v. Bloom, Penniman v. Briggs, and other decisions in that State, Selden, J., says: "It appears from these cases that in order to justify the inference that a corporation has surrendered its franchises it is not sufficient that it has become utterly insolvent, nor even that every vestige of its property has been sold by a sheriff, but it must also have lost all power to continue or to resume its business," and that nothing short of this is equivalent to a surrender except as otherwise provided by statute. And in the same case Pratt, J., says that the doctrine of Slee v. Bloom should not be carried beyond the precise facts on which the case rested.

Can it be said of the defendant company that it has lost all power to resume its business? Obviously not. It does not even appear that it is insolvent in fact, much less that it is insolvent to such an extent that depositors can suffer thereby; nor is there any thing

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