power to take, neither can it transfer, and the sufficiency of such transfer may be inquired into collaterally. So also there may be the inquiry whether it has ceased to exist; or that it has suffered acts which destroy it; in such case it is as fully and entirely dissolved as if declared so to be by the sentence of a competent court.

If, as a necessary consequence of certain acts it has ceased to have a corporate existence, any individual claiming injury therefrom or benefit resulting thereby may have his remedy without first instituting a proceeding and having it declared that its existence has ceased. The fact being that its existence has ceased, it becomes dissolved and may be so treated.' Hence, if, as stated in the bill, the original company has lost its identity and existence by becoming merged into the new organization, then it may be treated as at an end, for it is in no position to necessarily require a judicial inquiry to determine its existence; it is true that it may not and can not thus relieve itself, or, perhaps, the corporators individually, from responsibility to those to whom it or they may be indebted, but it may, by the act, become so situated as to be estopped from claiming that it remains undissolved. If, on the other hand, it has had an existence and suffered no act which per se works a dissolution, if the inquiry is as to irregularities in proceedings or failure to comply with terms of charter, or if it has not surrendered its franchises, then the courts of Iowa can not determine the matter either in a direct or collateral proceeding. In such cases a judgment of forfeiture must first be obtained in the state which granted the corporate powers. The effect of the Indiana statutes as to consolidation and whether they have been complied with can not be determined until they are fully brought before the court; but if consolidation as charged could not take place or was not in fact consummated, then the original grantee company would be still in existence and would be a necessary party to the bill. Enough is shown in the bill to entitle to relief if true, and it should not have been dismissed.

1 Philips v. Wickham, 1 Paige 595, and cases there cited; Briggs v. Penniman, 8 Cow. 387; Canal Co. v. Railroad Co., 4 Gill & Johns. 1.

Canal Co. v. Railroad Co., 1 Gill & Johns. 1; Angell & Ames on Corp., § 777; Trustees v. Hills, 6 Cowen 23; The People v. The Society, etc., 1 Paine 653. All matters of forfeiture are fully treated in Cook on Stock,

Slee v. Bloom, 19 Johns. 456; 2 Kyd on Corp., 467; King v. Passmore, 3 Term R. 244; 1 Rolle Abr. etc. (3d edition). 514; 4 Com Dig. 273.

SECTION TWENTY-ONE.

Sundry instances.

Upon the dissolution of a joint stock association (Wells, Fargo & Co.) the trustees can not compel the members to take stock in the successor corporation. The dissenting members are entitled to their share in money; the trustees are personally liable if they convert the property; a receiver should be appointed for the assets on hand. (All these questions are extensively discussed in the briefs.) Froghingham v. Barney, 6 Hun 366 (13 N. Y. S. C. R.).

Upon the consolidation of two joint stock companies the dissenting members are not entitled to an immediate sale and distribution, but only to security that the property will be there to answer their final judgments. McVicker v. Rose, 55 Barb. 347.

A member, though not notified of the meetings at which the action was taken, can not attack the sale by a printing company (which was unable to proceed) of all its property to a rival company, and taking pay for same in the latter's stock. Sawyer v. Dubuque Printing Co., 77 Iowa 242; 42 N. W. 300.

Lease between water company and ice company held valid; complainants had opportunity to take the stock; they can not lie by till it grows valuable and then object. Appeal of Shaaber, Pa.; 17 Atl. 209.

Statutory power to lease may be exercised by the directors without the stockholders' concurrence. Beveridge v. N. Y. El. R. Co., 112 N. Y. 1; 19 N. E. 489.

A subscriber when sued on his subscription can not plead in bar the consolidation of the company during the pendency of the suit. If it is a good plea at all it should be in abatement, puis darrein continuance, inasmuch as the cause of action does not die but passes to the new corporation. Swartwout v. Michigan Air Line R. Co., 24 Mich. 389, 394.

The subscriber is not released by the consolidation agreement, providing that the stock shall be canceled and new stock issued; this refers to the certificates and not to the subscriptions; the latter, as part of the property, debts due and rights of action of the constituent, vest in the consolidation. Hamilton v. Clarion M. & P. R. Co., 144 Pa. St. 34; 23 Atl. 53.

A subscriber is not released by a consolidation which was contemplated in the original articles and allowed under a statute enacted subsequently to the subscriptions being made, although at the time of the subscription there was no such statute in force: Hanna v. Cincinnati, etc., R. R. Co., 20 Ind. 30; nor by one to which he has expressly consented: Fisher v. Evansville, etc., Ry. Co., 7 Ind. 407.

A material change in the corporate purpose, though with legislative consent, releases the subscriber; as, for instance, a railroad company buying $200,000 of the stock of a steamboat company. Hartford, etc., R. R. Co. v. Crosswell, 5 Hill 383.

The charter not permitting a consolidation, the consent of the stockholders must be unanimous, although a statute, enacted subsequently to the charter, allows consolidation. Such statute is merely a concession on the part of the state. Mills v. Central R. Co., 41 N. J. Eq. 1.

A railroad corporation may be enjoined from deviating from its purpose by purchasing another road. Exhaustive opinion and citations by master in chancery. Kean v. Johnson, 9 N. J. Eq. 401.

A purchaser of shares in the Standard Oil Trust can compel the trustees to recognize him as such, and register his shares, although he is avowedly hostile to the trust and to its purposes; his motives can not be inquired into. Rice v. Rockefeller, 134 N. Y. 174; 31 N. E. 906.

One corporation will be enjoined from voting the majority of stock held by it in another corporation, when the two have conflicting interests. American R. & C. Co. v. Linn, 93 Ala. 610; 7 So. 191; Memphis & C. R. Co. v. Wood, 88 Ala. 630; 7 So. 108.

A stockholder in two corporations can not enjoin the stockholders of one from voting to engage in a business which he may fear will prove detrimental to the other. If there is ground for suit at all, it must be by one company against the other. Converse v. Hood, 149 Mass. 471; 21 N. E. 878.

In cases in which a company should bring suit, but does not, a stockholder may, after unavailing demand on the directors, bring suit in his own name; and if the directors themselves are the alleged wrongdoers, he need not even make the demand. Nathan v. Tompkins, 82 Ala. 437; 2 Southern 747;

Rothwell v. Robinson, 39 Minn. 1; 38 N. W. 772; Davis v. Gemmell, 70 Md. 356; S. C., 17 Atlantic 259, with valuable note; see also Boyd v. Sims, 3 Pickle (Tenn.) 771; 11 S. W. 948; Alexander v. Slarcy, 81 Ga. 536; 8 S. E. 630; City of Chicago v. Cameron, 120 Ill. 447; 11 N. E. 899; Moyle v. Landers, 78 Cal. 99; 21 Pac. 1133.

Although a stockholder is estopped from assailing a lease to which he has consented, yet, if the corporation fails to resist an illegal lease, he may do so in its name; the estoppel is only as between him and the company. Memphis & C. R. Co. v. Grayson, 88 Ala. 572; 7 So. 122.

The subscriber is released by an amendment to charter changing the termini, although the charter allows a change in route. Snook v. Georgia Improvement Co., 83 Ga. 61; 9 S. E. 1104.

A single stockholder has a remedy by injunction in his own name against his corporation and the president and directors thereof to prevent them from buying another road, and paying for it with stock of his own, the result of which would be to diminish his dividends, as his corporation was running at a profit and the other not. Shaw v. Campbell Turnpike R. Co. (Ken.), 15 S. W. 245.

Holder of stock as collateral may enjoin transfer of company's property to another, on showing it is done to make his stock worthless. Kelly v. Mariposa, etc., Co., 4 Hun 632.

Delay in attacking reorganization may bar plaintiff from relief in equity, but he may still have a right to damages for conversion of his stock. Gresham v. I. C. S. B. (Tex.), 21 S. W. 556.1

It has, however, been said that "The weight of authority is, as we think, clearly in favor of the position that" the legislature may so amend statute as to authorize corporations to consolidate without consent of all the stockholders, "and that the legislature, corporation and majority are not subject to the will of dissenting stockholders. Cook, Stock, Stockh. & Corp. Law, § 896; Durfee v. R. R. Co., 5 Allen 230; Bishop v. Brainerd, 28 Conn. 289; R. R. Co. v. Dudley, 14 N. Y. 336; Mowrey v. R. R. Co., 4 Biss. 79; Fed. Cas. No, 9891. In England there is

on restriction on the power of parliament to amend a charter. Heathcote v. Ry. Co., 2 Macb. & G. 100; McDonnell v. Canal Co. 3 Ir. Ch. 578. In this state, where the power is expressly reserved to the legislature by our constitution, the right should equally exist. The contract of the stockholders was made in view of our constitutional provision, which entered into and formed a part of the charter as effectually as did the statute under which the corporations were organized." Market St. Ry. Co. v. Hellman, (Cal.) 42 Pac. Rep. 225229.

CHAPTER XIII.

LIABILITIES OF THE ORIGINAL COMPANY.

Corporations owing duties to the public can not absolve themselves therefrom; they remain primarily liable as principals, although by lease or otherwise they intrust to others the partial or entire possession and management of their property such other company operating the same either alone or jointly with the former.

The original company remains liable when the statutes so provide; it may so remain in one jurisdiction though it have ceased to exist in another.

Corporations, even when permitted to transfer their property and franchises, as, for instance, leasing by legislative consent, are not thereby necessarily released from liability for acts done by the transferee; the liability may still remain so long as there be no express legislative exemption from the same.

SECTION ONE.

The York & Maryland L. R. R. Co. v. Winans, 17 Howard 30.

Original company liable for infringement of patent by company operating road jointly with it.

The York & Maryland Line Railroad Company existed under a charter from Pennsylvania, and was authorized to construct a road from the town of York to the Maryland line; its stock was subscribed for by a Maryland corporation, and their joint capital was invested in a continuous railroad from York to Baltimore. The Maryland corporation manages the road, appoints officers and agents, furnishes the rolling stock. Both companies have the same president and secretary. The Maryland company selects the directors of the Pennsylvania company; the latter company, in order to comply with the Penn