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in the mode prescribed by the statute, and the procedure prescribed by the statute must be strictly followed. Downing v. Potts, 23 N. J. Law, 66.

An attempted forfeiture of the stock of a dormant corporation for non-payment of assessments and the issue of new certificates does not affect the rights of the original holder where the legal steps to forfeit are not taken. See also as to the rights of purchasers of the old and new certificates, New York & Eastern Tel. & Tel. Co. v. Great Eastern Tel. Co., 74 N. J. Eq., 221; aff'd 75 Id., 297.

25. Certificate upon Payment of Capital.

The president and secretary, or treasurer, upon payment of each installment of capital stock, and of every increase thereof, shall make a certificate, stating the amount of the capital so paid, and whether paid in cash or by the purchase of property, stating also the total amount of capital stock, if any, previously paid and reported; which certificate shall be signed and sworn to by the president and secretary or treasurer, and they shall, within ten days after such payment, cause the certificate to be filed in the office of the secretary of state.

P. L. 1846, p. 68; P. L. 1849, p. 304; Act of 1875, §§30, 31; P. L. 1893, p. 447.

No certificate of payment of capital stock is apparently required to be filed until the full amount of capital stock authorized by the certificate of incorporation has been paid in, and the words "every increase thereof" seem to contemplate an increase beyond that amount made by amendment in pursuance of Sections 27 and 28, post. The question has not been adjudicated, probably because the penalty attaches only after the officers have refused for thirty days to file the certificate after written request so to do. The common practice is to file a certificate upon payment of the amount with which the company commences business, as stated in the certificate of incorporation, and a further certificate upon payment in full of the total capital stock authorized.

In New York it has been held, where a statute requires verification by the oath of the president or vice-president and the treasurer or secretary, and such verification is made by one person who is both vice-president and treasurer, it is a literal compliance. Manhattan

Co. v. Kaldenberg, 165 N. Y., 1, rev's'g 27 App. Div., 31; Novelty Mfg. Co. v. Connell, 88 Hun, 254, 257.

26. Penalty for failure to file.

If any of said officers shall neglect or refuse to perform the duties required of them in the preceding section for thirty days after written request so to do by a creditor or stockholder of the corporation, they shall be jointly and severally liable for all its debts contracted before the filing of such certificate.

P. L. 1846, p. 68; P. L. 1849, p. 304; Act of 1875, §32.

No action can be maintained until thirty days after a written request has been made by a creditor or stockholder of the officers to make a certificate and their neglect or refusal to do so within that time. Nassau Bank v. Brown, 30 N. J. Eq., 478.

The liability created by this section is considered at length in Waters v. Quimby, 27 N. J. Law, 296; aff'd 28 Id., 533.

26a.* Incorporators may amend certificate of incorporation before payment of capital.

It shall be lawful for the incorporators of any corporation, before the payment of any part of its capital, to record with the clerk of the county in which its original certificate of incorporation was recorded and file with the secretary of state, an amended certificate duly signed by the incorporators named in the original certificate of incorporation, and duly acknowledged or proved as required for certificates of incorporation under the act to which this is a supplement, modifying, changing or altering its original certificate of incorporation, in whole or in part, which amended certificate shall take the place of the original certificate of incorporation, and shall be deemed to have been

*Arbitrary number; section inserted here merely for convenience of reference.

filed and recorded on the date of the filing and recording of the original certificate; provided, however, that nothing herein shall permit the insertion of any matter not in conformity with the act to which this is a supplement; and provided, however, that this act shall not in any manner affect any proceedings pending in any court; for filing said amended certificate of incorporation, the secretary of state shall charge a fee of twenty dollars; provided, that where the total authorized capital stock of the corporation is increased by said amended certificate the secretary of state shall charge an additional fee of twenty cents for each one thousand dollars of said increase.

(Supplement of April 19, 1898, §1; P. L. 1898, p. 407.)

There was in the Revision of 1896 no provision for the amendment of a certificate of incorporation before the payment of the capital. A mistake or omission could only be cured after full organization. See Section 27. This is a substantial re-enactment of Sections 183, 238, 250 and 251, Title "Corporation," General Statutes, all of which were repealed by the Revision of 1896.

27. Amendments and Changes after Organization.

Every corporation organized under this act may change the nature of its business, change its name, increase its capital stock, decrease its capital stock, change the par value of the shares of its capital stock, change the location of its principal office in this State, extend its corporate existence, change its common stock into one or more classes of preferred stock, create one or more classes of preferred stock, and make such other amendment, change or alteration as may be desired, in manner following: The board of directors shall pass a resolution declaring that such change or alteration is advisable and calling a meeting of the stockholders to take action thereon. The meeting shall be held upon such notice as the by-laws provide, and

in the absence of such provision upon ten days' notice given personally or by mail. If two-thirds in interest of each class of the stockholders having voting powers shall vote in favor of such amendment, change or alteration, a certificate thereof shall be signed by the president and secretary under the corporate seal, acknowledged or proved as in the case of deeds of real estate, and such certificate, together with the written assent, in person or by proxy, of two-thirds in interest of each class of such stockholders, shall be filed in the office of the secretary of state, and upon the filing of the same, the certificate of incorporation shall be deemed to be amended accordingly; provided, that such certificate of amendment, change or alteration shall contain only such provision as it would be lawful and proper to insert in an original certificate of incorporation made at the time of making such amendment, and the certificate of the secretary of state that such certificate and assent have been filed in his office shall be taken and accepted as evidence of such change or alteration in all courts and places.

Nothing in this act contained shall be construed in any way to amend, alter or modify the provisions of section eighteen of the act to which this act is a supplement.

(As amended by Chap. 84, Laws of 1908; P. L. 1908, p. 127.)

P. L. 1846, p. 67; P. L. 1846, p. 68; P. L. 1849, p. 303; P. L. 1849, p. 304; Act of 1875, §33; P. L. 1876, p. 74; P. L. 1876, p. 235; P. L. 1877, p. 22; P. L. 1877, p. 179; P. L. 1878, p. 157; P. L. 1879, p. 88; P. L. 1880, p. 49; P. L. 1883, p. 240; P. L. 1886, p. 226; P. L. 1887, p. 137; P. L. 1887, p. 156; P. L. 1888, p. 224; P. L. 1889, p. 367; P. L. 1891, p. 87; P. L. 1891, p. 332; P. L. 1892, p. 287; P. L. 1892, p. 362; P. L. 1892, pp. 11, 12; P. L. 1893, p. 444; P. L. 1895, p. 607.

This section, so far as it relates to changing the location of the principal office of the company, has been practically amended by Chapter 85 of the Laws of 1897 (see Section 28a), so that the change

may hoy be made by resolution of the board of directors alone, upon filing a certificate in the office of the Secretary of State.

An amendment of the certificate of incorporation before the payent of any part of the capital stock is authorized by Chapter 172 of the Laws of 1898 (see Section 26a).

By an amendment of Section 17, passed in 1901, it was attempted to change the effect of this section by providing that any corporation might provide in its certificate of incorporation that the assent of two-thirds of each class of the stockholders present or represented at the meeting shall be sufficient. It is questionable, however, whether the amendment of Section 17 affects the matters covered by Section 27. See notes to Section 17.

"The law administered in this state with regard to the inviolability of contracts was well settled many years before the passage of the Act of 1875. The leading case of Kean v. Johnson was decided in 1853. That was followed by Zabriskie v. Railroad Company in 1867; and again by Black v. Canal Company in 1873. And it is fairly inferable that the thirty-third section (Section 27 of the Act of 1896) was intended to prevent a few dissentient stockholders, as here, from setting up their wills against the will of a large majority, and the statute should be so construed as to further that object." Meredith v. N. J. Zine & Iron Co., 59 N. J. Eq., 259, 276; 60 N. J. Eq., 445; see also Pronick v. Spirits Distributing Co., 58 N. J. Eq., 97.

This act authorizing the creation of new stock merely gives the consent of the state to the issue if all the stockholders agree, but if all do not agree, the act cannot be held to be a portion of the charter of a corporation organized under a special act or as an amendment thereto. Einstein v. Raritan Woolen Mills, 74 N. J. Eq., 624.

The certificate of incorporation is a contract between the shareholders which cannot be affected by any change made in it by virtue of a subsequent act of the Legislature, and it can only be effectually changed by virtue of some act of the Legislature in force at the time the certificate is filed, which should be read into the contract. Meredith v. N. J. Zine & Iron Co., 55 N. J. Eq., 211; aff'd 56 Id., 454; s. c. 59 Id., 257.

Action to change the nature of the business must be by direct proceedings in accordance with the statute, and not by merger or consolidation agreement. In the absence of express legislation unanimous consent of the stockholders is necessary. Colgate v. U. S. Leather Co., 72 Atl. Rep., 126.

As to defects in the acknowledgment of an amended certificate of incorporation, see Philadelphia & C. Ferry Co. v. Intercity Link R. Co., 73 N. J. Law, 86; aff'd 74 Id., 594.

This provision does not touch the power of directors to make call

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