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Paine and Others v. The Lake Erie and Louisville R. R. Company.

The plaintiff offered in evidence an act of the General Assembly of the State of Ohio, entitled, "An act to provide for the creation and regulation of incorporated companies in the State of Ohio,” passed May 1st, 1852; and offered to read the same from Swan & Critchfield's edition of the Statutes of the State of Ohio.

The defendants objected to the introduction of the same for the following reasons: because the same was irrelevant and incompetent; because the same was not pleaded; and objected to the introduction of Swan & Critchfield's edition of the Ohio statutes in evidence, because the same did not purport to be printed under the authority of the State of Ohio.

Whereupon the court inspected the title-page of said compilation, which is as follows, to wit: “Published for the State of Ohio, and distributed to its officers under the act of the General Assembly,” passed March 16th, 1860. “The Revised Statutes of the State of Ohio, of a general nature, in force August 1st, 1860, collated by Joseph R. Swan, with notes of the decisions of the Supreme Court, by Leander J.. Critchfield. In two volumes. Vol. I. Cincinnati: Robert Clarke & Co., Law Publishers, 1860."

The court also inspected the reverse side of the title-page, on which is found the following: “Entered according to Act of Congress, in the year 1860, by Robert Clarke & Co., in the Clerk's office of the District Court for the District of Ohio."

The court also inspected the following, found on page 1646 of the second volume of said compilation: “Swan & Critchfield's Statutes, purchase and distribution of by the State. Act of March 16th, 1860. 57 v. stat. 42;" the act referred to not being published in the compilation.

The court thereupon permitted said act to be read in evi-dence, and the appellant excepted.

The act is as follows:

VOL. XXXI.--20
Vol.

Paine and Others v. The Lake Erie and Louisville R. R. Company.

"An act to provide for the creation and regulation of incorporated companies

in the State of Ohio.

[Passed May 1, 1852. 50 rol. stat. 274.] (18.) Sec. I. Be it enacted by the General Assembly of the State of Ohio, That any number of natural persons, not less than five, may become a body corporate, with all the rights, privileges, and powers conferred by, and subject to all the restrictions of, this act.

TO CREATE AND REGULATE RAILROAD COMPANIES.

(19.) Sec. II. That any number of persons as aforesaid, associating, to form a company for the purpose of constructing a railroad, shall, under their hands and seals, make a certificate, which shall specify as follows: 1. The name assumed by such company, and by which it shall be known. 2. The name of the place of the termini of said road, and the county or counties through which such road shall pass. 3. The amount of capital stock necessary to construct such road. Such certificates shall be acknowledged before a justice of the peace, and certified by the clerk of the court of common pleas, and shall be forwarded to the Secretary of State, who shall record and carefully preserve the same in his ofice; and a copy thereof, duly certified by the Secretary of State, under the great seal of the State of Ohio, shall be evidence of the existence of such company.

(20.) Sec. III. That when the foregoing provisions have been complied with, the persons named as corporators in said certificate are hereby authorized to carry into effect the objects named in said certificate, in accordance with the provisions of this act; and they and their associates, succes.sors and assigns, by the name and style provided in said certificate, shall thereafter be deemed a body corporate, with succession, with power to sue and be sued, plead and be impleaded, defend and be defended, contract and be contracted with, acquire and convey, at pleasure, all such real and personal estate as may be necessary and convenient to carry into effect the objects of the incorporation, to make and use a common seal, and the same to alter at pleasure, and do all

Paine and Others v. The Lake Erie and Louisville R. R. Company.

needful acts to carry into effect the object for which it was created; and such company shall possess all the powers, and be subject to all rules and restrictions provided by this act.

(21.) Sec. IV. Said corporation shall be authorized to construct and maintain a railroad, with a single or double track, with such side tracks, turn-outs, offices, and depots, as they may deem necessary, between the points named in the certificate, commencing at or within and extending to or into any town, city, or village, named as the place of the termini of such road, and construct branches from the main line to other towns or places within the limits of any county through which said road may pass.

Sections 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, and 20, are upon the subject of the general powers of the corporation.

(38.) Sec. XXI. That whenever the lines of railroad of any railroad companies in this State, or any portion of such lines, have been or may be constructed, so as to admit the passage of burden or passenger cars over any two or more of such roads continuously, without break or interruption, such companies are hereby authorized to consolidate themselves into a single corporation, in the manner following:

1. The directors of said two or more corporations may enter into an agreement, under the corporate seal of each, for the consolidation of the said two or more corporations, prescribing the terms and conditions thereof; the mode of carrying the same into effect; the name of the new corporation; the number of the directors thereof, which shall not exceed thirteen; the time and place of holding the first election of directors; the number of shares of capital stock in the new corporation; the amount of each share; the manner of converting the shares of capital stock in each of said two or more corporations into shares in such new corporation; the manner of compensating stockholders in each of said two or more corporations who refuse to convert their stock into the stock of such new corporation; with such

Paine and Others v. The Lake Eric and Louisville R. R. Company.

other details as they shall deem necessary to perfect such consolidation of said corporations, and such new corporation shall possess all the powers, rights, and franchises conferred upon such said two or more corporations, and shall be subject to all the restrictions, and perform all the duties imposed by the provisions of this act: Provided, that all stockholders in either of such corporations who shall refuse to convert their stock into the stock of such new corporation shall be paid at least par value for each of the shares so held by them, if they shall so require, previous to said consolidation being consummated.

2. Such agreement of the directors shall not be deemed to be the agreement of the said two or more corporations, until after it has been submitted to the stockholders of each of said corporations, separately, at a meeting thereof, to be called upon a notice of at least thirty days, specifying the time and place of such meeting, and the object thereof, to be addressed to each of such stockholders, when their place of residence is known, and deposited in the post office, and published for at least three successive weeks in one newspaper

in at least one of the cities or towns in which each of said corporations has its principal office of business, and has been sanctioned by such stockholders by the vote of at least two-thirds in amount of the stockholders present at such meeting, voting by ballot, in regard to such agreement, either in person or by proxy, each share of capital stock being entitled to one vote; and when such agreement of the directors has been so sanctioned by each of the meetings of the stockholders separately, after being submitted to such meetings in the manner above mentioned, then such agreement of the directors shall be deemed to be the agreement of the said two or more corporations.

(39.) Sec. XXII. Upon making the agreement mentioned in the preceding section, in the manner required therein, and filing a duplicate or counterpart thereof in the office of the Secretary of State, the said two or more corporations mentioned or referred to in the said first section, shall be

Paine and Others v. The Lake Erie and Louisville R. R. Company.

merged in the new corporation provided for in such agreement, to be known by the corporate name therein mentioned; and the details of such agreement shall be carried into effect, as provided therein.

(40.) Sec. XXIII. Upon the election of the first board of directors of the corporation created by the agreement in the twenty-first section of this act mentioned, and by the provisions of this act, all and singular the rights and franchises of each and all of said two or more corporations, parties to such agreement, all and singular their rights and interests in and to every species of property, real, personal, and mixed, and things in action, shall be deemed to be transferred to, and vested in, such new corporation, without any other deed or transfer; and such new corporation shall hold and enjoy the same, together with the right of way and all other rights of property, in the same manner and to the same extent as if the said two or more corporations, parties to such agreement, should have continued to retain the title and transact the business of such corporations; and the titles and the real estate acquired by either of said two or more corporations, shall not be deemed to revert or be impaired by means of anything in this act contained; Provided, that all rights of creditors, and all liens upon the property of either of said corporations, parties to said agreement, shall be and hereby are preserved unimpaired; and the respective corporations shall continue to exist as far as may be necessary to evforce the same; and provided further, that all the debts, liabilities and duties of either company shall thenceforth attach to such new corporation, and be enforced from the same, to the same extent, and in the same manner, as if such debts, liabilities, and duties had been originally incurred

by it.

(41.) Sec. XXIV. Any railroad company heretofore or hereafter incorporated, may at any time, by means of subscription to the capital of any other company, or otherwise, aid such company in the construction of its railroad, for the purpose of forming a connection of said last mentioned

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