100a.* Attachment against foreign corporations. Attachments may issue against * corpora tions not created or recognized as corporations of this state by the laws of this state and joint stock associations. §4, Attachment Act; P. L. 1901, p. 158. Under this section of the attachment act before the Revision of 1901, it seems that a foreign corporation complying with the requirements of law to authorize it to carry on business in this state was not liable to attachment, but if such corporation owns property and transacts business here and has not complied with the requirements permitting it to do business in this state it is liable to attachment. Goldmark v. Magnolia Metal Co., 65 N. J. Law, 341. The language of this section is somewhat different from that of the Revision of 1874 (Gen. Stat., p. 99, §7), the words "of this state" italicized above being new. It is probable, however, that no change of meaning is effected. The test is not whether a corporation is a resident or non-resident, but whether it is created or recognized as a corporation of this state by the laws of this state. Brand v. Auto Service Co., 75 N. J. Law, 230. The title of a receiver of a foreign corporation will be protected against attachment by other foreign corporations. Merchants' National Bank of Boston v. Pennsylvania Steel Company, 57 N. J. Law, 336. 101. Foreign corporations to pay same taxes, etc., required of New Jersey corporations in other states. When, by the laws of any other state or nation, any other or greater taxes, fines, penalties, licenses, fees or other obligations or requirements are imposed upon corporations of this state, doing business in such other state or nation, or upon their agents therein, than the laws of this state impose upon their corporations or agents doing business in this state, so long as such laws continue in force in such foreign state or nation, the same taxes, fines, penalties, licenses, fees, obliga *Arbitrary number; section inserted here merely for convenience of reference. tions and requirements of whatever kind shall be imposed upon all corporations of such other state or nation doing business within this state and upon their agents here; provided, that nothing herein shall be held to repeal any duty, condition or requirement now imposed by law upon such corporations of other states or nations transacting business in this state. P. L. 1894, p. 346; P. L. 1894, p. 446. This section was first enacted in 1894. The Act of 1894 was impliedly repealed by "An Act for the licensing and taxation of foreign corporations," passed in 1904. But the Act of 1904 was expressly repealed in 1905. Under the common law doctrine of statutory construction the repeal of the Act of 1904 by the Act of 1905, operated to revive the Act of 1894. Texas Co. v. Dickinson, 75 Atl. Rep., 803. This provision is not in conflict with Article 4, Section 7, paragraph 4, of the State Constitution. The constitutionality of such statutes has been upheld, since it is within the province of the Legislature to enact statutes. which become operative upon the happening of a contingency named therein. Texas Co. v. Dickinson, 75 Atl. Rep., 803. 102. Service of prerogative writ against foreign corporation. In any proceeding in any court of this state against a foreign corporation requiring the use of any prerogative writ, such writ may be served upon the president, vice-president, secretary or other head officer, or any director, either personally or by leaving a copy at the dwelling-house or usual place of abode of such officer or director, or upon any general agent, attorney, solicitor, superintendent or manager of such corporation. P. L. 1881, p. 298. 103. How writs may be enforced upon failure to make return, etc. In case any such corporation, after the service of any such writ, as aforesaid, shall neglect or refuse to make a proper return thereto, or shall neglect or refuse to obey the command of any such writ, when issued upon any judgment, order or decree of the supreme court, court of chancery, or any of the circuit courts of this state, and served as aforesaid, within the time prescribed by such writ, said court may enforce such writs by attachment or sequestration of the property, rights and credits of the corporation within this state. P. L. 1881, p. 298. See note to section 87. XI.-Merger of Corporations. 104. Corporations of this state may merge and consolidate. Any two or more corporations organized or to be organized under any law or laws of this state for the purpose of carrying on any kind of business of the same or a similar nature may merge or consolidate into a single corporation, which may be either one of said merging or consolidating corporations, or a new corporation to be formed by means of such merger and consolidation; but the provisions of this act relative to merger and consolidation shall not apply to any railroad company, insurance company (except companies for the insurance or guaranty of the title to lands), banking companies, savings bank or other corporation intended to derive profit from the loan and use of money, turnpike company or canal company. P. L. 1883, p. 242; P. L. 1888, p. 441; P. L. 1893, p. 121. This section does not seem to warrant mergers of corporations without reference to their similarity. It is apparent that corporations organized under this Act and many corporations organized under other Acts may not merge, and a strict interpretation of the Act which permits corporations to consolidate, provided their purpose is to carry on business of a similar nature, would not warrant the merger of corpora tions where the business was not similar, such as a holding company and a manufacturing or mercantile corporation. The criterion laid down by this Act is the primary purpose of the corporation, not whether, as in the case of corporations whose charters provide for a multiplicity of purposes, some two might be similar. The question might resolve itself into the nature of the business actually transacted by each corporation as indicative of their primary purpose. The power to merge is not to be implied. It exists only by plain legislative enactment. It follows that there is no right to consolidate without unanimous consent of stockholders, unless the power has been conferred by a statute that may be read into the contract of incorporation. Colgate v. U. S. Leather Co., 72 Atl. Rep., 126. A change in the objects of incorporation may not be accomplished by means of a consolidation agreement. Ibid. Quaere. It is a question whether the right of stockholders to object to the power of consolidation belongs only to stockholders who became such prior to the passage of the consolidation act, or pertains also to stockholders who became such after the passage of the act. Ibid. Quaere. Is a consolidation under this section voidable at the instance of a stockholder, when a number of directors in one company are also directors in the other? Ibid. Is a consolidation agreement vitiated by the fact that it contains a provision for issuance of stock, without payment of money or equivalent value, for the purpose of inducing certain parties to take an interest in the company? Ibid. A stockholder who acquiesces in a consolidation made pursuant to this statute until the identity of the two corporations is lost and the property exchanged and converted into new forms, is not entitled to a decree vacating such a merger. Beling v. American Tobacco Co., 72 N. J. Eq., 32. See also Dana v. American Tobacco Co., 72 N. J. Eq., 44; aff'd on the ground of laches in 69 Atl. Rep., 223. For a discussion of what is adequate notice to a stockholder of a corporate meeting, see Beling v. American Tobacco Co., supra; Dana v. American Tobacco Co., supra. A corporation organized to hold the stock of merging corporations obtained a loan for working capital. Held, The constituent companies were properly chargeable with the proportion of the loan which was used in their behalf. Dittman v. Distilling Co., 64 N. J. Eq., 537. Where two companies consolidate and mortgage bond holders exchange the bonds of one of the constituent companies for bonds of the new company but the trustee neglects to cancel the bonds of the constituent company, the question in equity whether the bonds are to be held satisfied, must be determined by the intent of the parties and the facts in the case. Burlington City Loan & Trust Co. v. Princeton Lighting Co., 72 N. J. Eq., 891. Where no substantial change in the management and control of a corporation is made when it is taken over by another corporation, the question whether a novation as to corporate debts exists is for the jury. Parsons Mfg. Co. v. Hamilton Ice Mfg. Co., 73 Atl. Rep., 254. Where consolidation is effected by exchange of stock and payment of cash at an enormous overvaluation, it has been held that such a contract is against public policy and will not be enforced. Strickland v. National Salt Co., 76 Atl. Rep., 1048. 105. Consolidation or merger; how made. The consolidation or merger shall be made under the conditions, provisions, restrictions, and with the powers hereinafter mentioned: 1. The directors of the several corporations proposing to merge or consolidate may enter into a joint agreement under the corporate seals of the respective corporations, for the merger or consolidation of said corporations, and prescribing the terms and conditions thereof, the mode of carrying the same into effect, the name of the new corporation (if one shall be so formed or created), or of the consolidated corporation, as the case may be; the number, names and places of residence of the first directors and officers of such new or consolidated corporation (who shall hold their offices until their successors be chosen or appointed, either according to law or according to the by-laws of the said corporation); the number of shares of the capital stock, whether common or preferred, and the amount or par value of each share of such new or consolidated corporation; and the manner of converting the capital stock of each of said merging or consolidating corporations into the stock or obligations of such new or consolidated corporation, and in case of the creation of a new corporation, how and when the directors and officers shall be chosen or appointed; together with all such other provisions and details as such first-mentioned directors shall deem necessary to |