545. (c). Upon tenure of office of officers and omployees-The English statute. Under the English Railways' Clauses Act of 1863, all clerks, officers and servants, who at the time of amalgamation are in the employment of the dissolved company, thereupon become clerks, officers, or servants, as the case may be, of the amalgamated company, with the same rights, and subject to the same obligations and incidents in respect of their employment as they would have had, or would have been subject to. as the clerks, officers, or servants of the dissolved company; and they continue in office or employment until duly removed by the amalgamated company, or until the terms of their employment are duly altered by the latter.'

1 26 & 27 Vict. ch. 92, § 49.

§ 546. (d). Upon calls and subscriptions. -Calls made by the original companies, remaining unpaid at the time of consolidation, are payable to the consolidated corporations, and may be enforced by the latter as if originally made by it.' And the consolidated company cannot release a subscriber to one of the original companies from his liability to corporate creditors by acquiescing in a device whereby he seeks to evade it.' But unless a sale or consolidation be authorized, the purchasing or consolidated company cannot enforce the payment of calls on subscriptions to the stock of the former;3 for an unauthorized sale or consolidation releases subscribers to the capital stock of the companies." And although a consolidation be authorized, yet, if the enabling act was passed after the making of a subscription, a dissenting

subscriber is discharged from liability upon his contract.5 On the other hand, it follows, of course, that where consolidation had been already authorized by charter or statute at the time the subscriber agreed to take stock in the original company, he will not be released by the fact that the company has availed itself of that privilege; unless the consolidation results in a radical change in the purpose for which the company, to whose stock he subscribed, was incorporated.

1 Vide cases cited infra. This is expressly enacted in England, 26 & 27 Vict. ch. 92, § 52.

4 Bouton v. Dement, 123 III. 142.

3 Thrasher v. Pike County R. R. Co. 25 Ill. 393.

4 Shelbyville etc. Turnpike Co. v. Barnes, 42 Tnd. 498; State v. Bailey, 16 Ind. 46; 79 Am. Dec. 405; McCray v. Junction R. R. Co. 9 Ind. 358.

5 Harshman v. Bates County, 92 U. S. 569; Martin v. Junction R. R. Co. 12 Ind. 605; McCray v. Junction R. R. Co. 9 Ind. 358.

6 Mansfield etc. R. R. Co. v. Brown, 26 Ohio St. 233; Bish v. Johnson, 21 Ind. 299; Hanna v. Cincinnati etc. R. R. Co. 20 Ind. 30; Sprague v. Illinois River R. R. Co. 19 Ill. 174. See Bishop v. Brainerd, 28 Conn. 289. Cf. Mansfield etc. R. R. Co. v. Stout, 26 Ohio St. 241; Illinois River R. R. Co. v. Zimmer, 20 Ill. 654.

7 Illinois Grand Trunk R. R. v. Cook, 29 Ill. 237.

§ 547. (e). Upon municipal subscriptions.While the consolidation of railway companies, to one of which a municipal subscription has been voted, does not necessarily render the making of the subscription by the municipal officers an unauthorized act, nor impair the right of the company to receive payment thereof when actually made,1 yet dissenting tax-payers may object to the payment, if the consolidation materially alters the plan of the enterprise to which the aid was originally voted; and they will not be estopped by any consent or acquiescence therein by the municipal authories, unless the consolidation was made under

authority existing at the time the vote in favor of subscription was taken.3

1 That a subscription to one of the original corporations may be paid to the consolidated company, see Chicaming v. Carpenter, 106 U. S. 663; New Buffalo v. Iron Co. 105 U. S. 73; Nugent v. Supervisors, 19 Wall. 241; Niantic Savings Bank v. Douglass, 5 Ill. App. 579; Harter v. Kernochan, 103 U. S. 582, County of Tipton v. Locomotive Works, 13 U. S. 523; Menasha v. Hazard, 102 U. S 81; County of Cass v. Gillet, 100 U. S. 585; Wilson v. Salamanca, 93 U. S. 499; County of Schuylery. Thomas, 98 U. S. 169; County of Henny v. Nicolay, 95 U. S. 619; County of Scot and v. Thomas, 94 U. 8. 682; Town of East Lincoln v. Davenport, 94 U. S. 801. Contra, Harshman v. Bates County, 92 U. S. 5.9.

2 Clearwater v. Meredith, 1 Wall. 40; McMahan v. Morrison, 16 Ind. 172; 79 Am. Dec. 418; State v. Nehama County, 10 Kan. 569.

3 Mansfield etc. R. R. Co. v. Brown, 26 Ohio St. 223; Sparrow v. Evansville etc. R. R. Co. 7 Ind. 369.

§ 548. (ƒ). Upon pending litigation --The consolidation of two or more companies does not abate a pending action to which any of them may be a party.1 Even though the consolidation may be accompanie 1 by a change of name of the company engaged in the litigation, and a dissolution of its corporate existence, its existence continues for the purpose of the suit. The legislature has no power to authorize it, nor can the corporation act under legislative sanction, so as to defeat or prejudice the rights of plaintiffs in pending suits against it. As to such actions, the corporation exists for the purpose of judgment; and as to them it has not lost its individuality or identity.

3

For

no act of a defendant can defeat the rights of a plaintiff. As at common law, a feme sole defendant marrying after suit brought, though she lost her identity, changed her name, and merged her separate existence in that of her husband, it was not necessary that the plaintiff should take any notice thereof. He was entitled to judgment against her by her former name.1 But to obtain a judg

ment against the consolidated company itself, it must be substituted as defendant."

1 Shackleford v. Mississippi Central R. R. Co. 52 Miss. 159; East Tennessee etc. R R. Co. v. Evars, 6 Beisk. (07; Baltimore ctc. R. R. Co. v. Musselman, 2 Grant's Cas. (Pa.) 348. Cf. Prouty v. Lake Shore etc. Ry Co. 52 N. Y. 263.

2 East Tennessee etc. R. R. Co. v. Evans, 6 Heisk. 607.

3 East Tennessee etc. R. R. Co. v. Evans, 6 Heisk. 607; Shackleford v. Mississippi Central R. R. Co 52 Miss. 159; Baltimore etc. R. R. Co. v. Musselman, & Grant Cas. (Pa.) 348. See Bruffet v. Great Western R. R. Co. 25 Ill. 353, 337. Sec, however, Indianola R. R. Co. v. Fryer, 55 Tcx. 609, as to substitution of the consolidated corporation as party defendant where the consolidation has wrought a dissolution of the original defendant.

4 Shackleford v. Mississippi Central R. R. Co. 52 Miss. 159.

5 Prouty v Lake Shore etc. R'y Co. 52 N. Y. 363; Selma etc. R. R Co v. Haroin, 40 Ga. 706. Cf. Ketcham v. Madison etc. R. R. Co. 20 Ind. 200

§ 549. The same subject, continued-The New York and English statutes.—In New York it is enacted that no suit, action, or other proceeding now pending before any court or tribunal, in which either of the railway companies is a party, shall be deemed to have abated or to have been discontinued by the agreement and act of consolidation, but may be conducted in the name of the existing corporations to final judgment, or the new corporation may be, by order of the court, on motion, substituted as a party.1 (A similar statute in New York has been held to apply as well to actions pending in the federal courts as to those pending in the courts of the State.) This, also, is the English law under the Railways' Clauses Act of 1863, both as to litigation and arbitration; and all judgments of the courts. and awards of arbitrators may be enforced by or against the amalgamated company, either solely, or, as the case may require, jointly with the other company. Under this statute, the amalgamated company may carry on actions instituted by the

3

dissolved company, without any order or suggestion on the record. And all persons committing offenses against any of the provisi ns of any special act relating to the dissolved company, before the amalgamation, may be prosecuted, and all penalties incurred by reason of such offenses may be sued for and recovered, in like manner and in all respects as if the amalgamating act had not been passed— the amalgamated company being, in respect of all such matters, considered as identical with the dissolved company."

1 N. Y. Law3 of 1869, ch. 917, § 5.

2 Elison Electric Light Co. v. Westinghouse (U. S. District Court of N. J. 1835), 4 R'y & Corp. Law J. 423, construing N. Y. Laws of 1834, ch. 37, and citing Central R. R. Co. v. Georgia, 92 U. S. 655; Bank v. Colby, 21 Wall. 611.

3 26 & 27 Vict. ch. 92, §§ 43, 41.

4 West Hartlepool etc. R'y Co. v. Jackson, 36 Law J. Ch. 189; Browne & Theobald's Railway Law, 470.

5 26 & 27 Vict. ch. 92, § 43.

2

§ 550. (.) Upon choses in action.-The consolidated company may sue in its own name upon the choses in action of the constituent corporations.' It may compromise claims against the original companies, and enforce the settlements agreed upon The law upon this subject has been ably codified in England by the Railways' Clauses Act of 1863, which enacts that "except as may be otherwise provided in the special act, all debts and money due from or to the dissolved company, or any persons on their behalf, shall be payable and paid by or to the amalgamated company, that all tolls, rates, duties and money due or payable by virtue of any act relating to the dissolved company, from or to that company, shall be due and payable from or to the amalgamated company, and shall be re