20 Johns. R. r. Billenger. I. CH. 22. counsel that the plt. as one of the subscribers, was one of the Art. 1. promisors, so one partner suing the rest, &c. See ch. 52. a. Con. 1. s. 5, this last circumstance defeated the plt's. action. 1 Barn. & Cres. 74. 3 Greenl. 187 case of a joint fund, &c. Subscription on condition valid. The deft., with others, in 89, Mc Auley writing, engaged to pay the several sums they subscribed to the plts., a committee, appointed by the members of a church to obtain subscriptions, and contract to repair it. In the writing was a proviso, to be void if a sufficient sum was not raised to repair it the committee contracted with A to repair the church, who took the subscription, about half the sum, in payment, and agreed to raise the residue by a sale of the pews, he was authorised to do so. Held, the deft. was bound to pay his subscription. See ch. 143. a. 5. s. 37. Vol. 5 ; 5 Pick. 506-509. 4 Rand. 186188, Farmer's Bank of Vir nolds. 34. If one subscribe a share in a corporation he is not bound, unless the corporation be held to allow his share. Collin's case above: additional authorities, 11 Mass. R. 118; 14 Id. 172; 2 Pick. R. 579; 2 N. H. Rep. 385. § 47. con. Held, 1. Where a bank note is cut in two and one half sent by mail and lost, the holder of the remaining ginia v. Rey- half has a right to recover the amount of the note of the bank, proving ownership and giving good security to indemnify the bank; but if these conditions be not performed by the holder until after the suit is brought, he shall not recover of the bank interest or costs. See 16 Mass. R. 9-16. § 48. con. Bank not liable as to special deposits, &c. Assumpsit for money had and received, ($50,000,) by Essex bank of the plt's. testator: First suggestion, that pending the action the charter expired. Held, the stat. of June, 1819, made before the charter of twenty years expired, enacting that all corporations then existing, (as this was,) or to be established, whose powers would expire at a given time, should be continued in existence, as bodies corporate, three years after the time limited by their charters, for the purposes of suing and being sued, settling and closing their concerns, and ex'rs. v. The dividing their capital stock, but not for continuing their busiPresident, Directors, & Co. ness, for which they were established, was a constitutional of Essex Bank. Statute; and the defts. held to answer, &c. 16 Mass. R. 245 to 274, Foster & al. 17 Mass. R. 479 to 514, is the same case, and decided the bank was not liable for a special deposit, without any special undertaking, and without reward, though lost, except in case of gross negligence, which is equivalent to fraud in its effects on contracts; nor in this case where a cask of gold coins was deposited in the bank for safe keeping, and receipted for by the president and cashier, and the gold was fraudulently taken out by the cashier. As to special deposits the corporation is I. Cн. 22. bailee. Discounting on deposits in a bank for safe keeping Art. 1. applies to general deposits only. Con. Where a bank paid notes on which the president's name had been forged, neglected fifteen days to return them, held, 17 Mass. R. it had lost its remedy against the person from whom the notes 33 to 46, Glouhad been received. cester Bank v. Salem Bank. land v. Marsh. 51. con. Trespass for assaulting, beating, and wounding 16 Mass. R. the plt. and imprisoning him, &c. Held, under the statute of 389-392, Le1808. ch. 65. s. 6, the execution against a manufacturing corporation, an officer levies on the body or estate of a member of it, must be the same execution on which the officer made demand on the president, &c., and the member so levied on must have been such at the time of the levy; but the statute of 1817, c. 183, has altered the law; and 17 Mass. R. 333-336, members, how liable; see ch. 173. a. 1. s. 12. Vol. 5. The real estate of a manufacturing corporation may be assessed in a parish tax. 17 Mass. R. 53-55. Penniman & Manufacturing corporation was formed under the act of 1 Hop. Ch. March 22, 1811, ceased to act as such, was indebted and R. 300-305, without funds, is dissolved within the intent of the act, so far al. v. Briggs & as to give a remedy to creditors against the individual stock- al. holders: 2. This is not prevented by electing trustees to no apparent purpose but to keep the company in existence: 3. The corporations are of a new and peculiar character: 4. A judgment of dissolution is not necessary, &c. 5. The suit is properly in equity, the necessary contribution, constituting the case one of equitable jurisdiction. The bill was by creditors against the persons composing said corporation, charging a dissolution of it, and seeking payment from the said persons, to the extent of their respective shares of stock. The main question was, is this company dissolved? The defts. contended there must be a judicial dissolution to justify the course the plts. were pursuing. The principal reason for holding the corporation dissolved for the purposes of the suit, were, that it was in some measure a partnership; that the State had no interest in it, and especially that the creditors had no power over a judicial prosecution, nor any remedy against the stockholders personally until after the corporation was dissolved to all the purposes of this remedy; so it was said the remedy was at law this does not appear to have been much relied on, &c. 20 Johns. R. 669, a like principle. A corporation was created in March, 1817, gave a bond under its seal, on which judgment was entered in May, 1817, viewed as dissolved in February, 1818: held, the judgment was binding and VOL. XI. Art. 1. Con. I. CH. 22. conclusive on the members individually to the extent of their individual shares. The bond was given by the trustees as agents of the corporation; and 2. Held, they could bind the individuals to the extent of their respective shares in case of a dissolution of the corporation : 3. Held, the individual stockholders, who on such dissolution, became liable for said judgment, could not impeach the consideration except for fraud, or imposition, or mistake. Id. Dissolution is a matter at law, at the suit of the government. 19 Johns. 456-474; 19 Johns. R. 60. Corporation has no power but what the statutes give it. Utica Ins. Co. v. Scott, 19 Johns. R. 1; and sec. 4. 16 Mass. R. 94-102, the 1 Pick. R. 372 Episcopal § 53. Assumpsit to recover the price of a share in this company's stock, the deft. subscribed for and failed to pay, &c. Certain persons associated in writing to carry on this manufacture, and were afterwards incorporated therefor-after this, one subscribed the writing and thereby became a member, and was held to pay his subscription: 2. It being agreed originally, if a further sum should be necessary, the subscribers should be assessed in proportion to their subscriptions. Held, the only remedy for such assessments was to sell the shares: 3. If such a company refuse to give a certificate to a stockholder entitled to it, he does not thereby lose his rights: 4. A member cannot object an irregularity in warning their first meeting in an action against him for his subscription money after organised, and having done business several years: 5. If such a corporation set up a store for the sale of merchandize generally, and sell such on credit, a purchaser cannot object to an action for the price of the goods sold to him, and say they were prohibited by law. to carry on such trade; the court said the legislature did not mean to prohibit the sale of goods by the corporation to the persons employed by it, and the legislature can enforce the prohibition by causing the charter to be revoked, &c. 1 Pick. R. 297-309, Canal Bridge v. Gordon. Held, a corporation can be bound, without a vote or deed, by implication for corporate acts. § 54. The principles of this case seem to be: 1st. a corpo-375, the Epis- ration is formed in one shape, under a private act of the legislacop. Charitable Society v. the ture [1794;] then, [1818,] this act is repealed, and the persons, generally of the former corporation, by another act are made a body politic in somewhat different shape or form; the new corporation is answerable for the debts of the old one and entitled to its property, especially when the new one acts accordingly 2. If persons hired money for the old corporation, and gave a note not strictly empowered so to do; but it received the money and used it, and at times paid the interest accruing on the note; it became the debtor; at any rate on the money counts liable to pay. 55. The Stat. of 1808, ch. 65, authorizes the levy of an I. CH. 23. execution against a manufacturing corporation on the bodies ART. 1, and estates of individual members in a certain case, extends not to the estate of one deceased, who died before the action was commenced. 17 Mass. R. 64, 65. 147. Con. § 56. The seal of a corporation is not necessary to give va- 3 Rand, 136– lidity to an agreement for the sale of real property. See § 31, 5 Munf. 324. 82. $57. A statute granting corporate powers is inoperative till 1 Greenl. 79— it is accepted; but when accepted it becomes a contract: 2. If a bank charter expire, it may be revived in all its original force by a subsequent statute: 3. Such subsequent act merely revives the former corporation, and does not create a new one. See the reasons, Foster v. Essex Bank. en 513-543. $58. Assumpsit lies against a corporation on the simple con- Motte v. tracts of its authorized agents when acting within the scope of Hicks, 1 Cowthe legitimate purposes of such incorporation : 2. May bind itself without its seal: 3. Is included in the word person, and may give a negotiable note, 1 R. L. 151, without any powers therefor in their act of incorporation, and one endorses it thus: 'A. B. agent," he is not liable as endorser. Though no proof he was agent, as he may limit his endorsement. CHAPTER XXIII. CARRIERS. 5. con. Art. 103 Com. Code of France makes him answerable ART. 1. for the loss of the goods received by him to be carried, except in Con. cases of superior force, (de la force maguere.) He is liable for all damages but those that proceed from the perishable nature of the article, or from superior, or as some translate, irresistible force. This being liable for losses in all cases except they are by the act of God or public enemies, seems peculiar to the common law only, and for about three centuries only; and the French principle is the same by land and sea. See also ch. 52, art. 6, sect. 24, 25, 26, Vol. 2. 8. C.J. Holt in Coggs v.Barnard, Jones Appendix 13, said, 'as to the third sort of bailment, scilicet locatio, or lending for hire, in this case the bailee is, also, bound, to take the utmost care, and to return the goods when the time of the hire is expired.''Utmost care'-Jones, p. 86, Am. Ed. of 1828 on bailments, objects jealously against these words, (See ch. 17 a. 20, s.6, and contends the hirer is held only to an ordinary degree of diligence, because the letter to hire receives a quid pro quo, there is mutual benefit. Jones clearly is right if he excludes common carriers. He traces Holt's error up to Gaius, a Roman lawyer, through Bracton; it seems Gaius alone improperly used diligentissimus. I. CH. 23. 9. 1. Count in trover: 2. Charging the defts. jointly as common carriers, and stating their undertaking to carry for the plts. a package containing bank notes, their property, from N. to P. for hire 3. Count alleging the defts. undertaking to carry 1 Pick. R. 50- the package for a reward, and charging them with negligence 57-Dwight v. in the transportation, whereby the notes were lost: defts. pleadBrewster & al. ed the general issue. Held, 1. The practice of conveying for hire in a stage coach, parcels not belonging to passengers, constitutes the proprietors of the coach common carriers : 2. Held liable, as partners, for the loss of such a parcel by the driver, who was one of the proprietors. Partridge v. same. Jones, Am. Ed. 1828, pp. 103, 104. 1 Barn. & Cres. 181186. 1 Maul. & S. 211; 5 B. & 343; 4 do. 10. What is his delivery of goods or not. A delivery of a parcel of iron to a carrier, to be carried by him to B_ the vendee, in the country. The carrier having arrived at B's premises, landed part of the iron on his wharf, but finding В had stopped payment, reloading the same on board his barge, took all the iron to his own premises. Held that this was no delivery of any part of the iron, so as to divest the consignor of his right to stop in transitu the special property remaining in the carrier until the freight for the whole cargo, was tendered or paid, or until he had done some act, shewing that he had assented to part with the possession of the goods without receiving freight. The consignee did not take possession of the part landed, nor was the iron weighed in order to ascertain the freight, and none was tendered or paid-Bailey J, ' In order to A. divest the consignor's right to stop in transitu, there ought to be such a delivery to the consignee, as to divest the carrier's lien upon the whole cargo.' In this case nothing was done to divest it. 32; 2 Show. ART. 2. 1828. § 5. When the carrier is deceived: further cases, the law is settled in cases, where the carrier gives notice, beyond an Jones, Am. Ed. amount or goods named, he will not be answerable, unless truly informed and paid accordingly. And this notice whether public or individual comes to the owner's knowledge, the carrier is not liable, in case of loss, whenever not truly informed, as in Boston v. Donavan, 4 B and A 31, &c. ; the carrier had given notice within the plt's. knowledge, that he would not be accountable for bills, bank notes, &c. unless notice was given and an additional premium paid: but the plt. delivered to the carrier a banker's parcel, containing such bills and notes to a large amount without disclosing the nature or value of the contents; the parcel was lost. Held, the plt. having knowledge of the notice, was bound to have informed the carrier of the value in order to render him responsible. This concealment or deception is a legal fraud. So En. Bignold v. Waterhouse, 1 M. & S. 261. The carrier gave general notice not to be responsible for articles |