shareholder whose shares have been forfeited for a failure to pay assessments made thereon, applies to a court of equity for relief against the forfeiture. Such relief can only be granted on the condition of his paying, or offering to pay, what is really due by him in respect of the shares. A court will not, therefore, grant an injunction to restrain a sale of corporate stock to satisfy a valid assessment merely because notice of the sale has been publish ed an insufficient length of time, unless it appears that the stockholder has paid, or at least offered to pay, the amount of the assessments.1

§ 1809. No Relief against Forfeiture by Managers after Assignment for Creditors. The charter of a railroad company provided that, if any stockholder should omit, for the space of six months, to pay any installment on his shares which might be called for, the managers of the company might declare such shares forfeited. The defendant, who was the owner of a certain number of shares in the company, paid two installments on his shares when called for. The company then made a general assignment for the benefit of its creditors; and a call for a third installment was made by the managers, without either the approval or disapproval of the assignee. The period of six months prescribed by the charter having elapsed without the payment of these assessments, the managers forfeited the defendant's shares. It was held that this was rightly done, and that a court of equity would not relieve him against the forfeiture.2

§ 1810. Injunction Granted against Forfeiture Where Shares are Paid in Full. But where the directors make a call on the corporate stock, and threaten to forfeit, under the charter, the shares of those who refuse to respond, they will be enjoined from forfeiting such shares as have been paid in full.3

1 Burham v. San Francisco Fuse Manuf. Co., 76 Cal. 26; s. c. 17 Pac. Rep. 940.

2 Germantown &c. R. Co. v. Fitler, 60 Pa. St. 124; s. c. 100 Am. Dec. 546.

3 Moore v. N. J. Lighterage Co., 23 N. Y. St. Rep. 213; s. c. 5 N. Y. Supp. 192.

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§ 1815. Action Brought in Corporate Name. — As already seen,1 one of the usual incidents of a corporation is the capacity to plead and be impleaded in its corporate name. An action by a corporation against one of its stockholders to recover an assessment against his subscribed stock, is therefore regularly brought in the corporate name,2- and this, although the contract may have been made with commissioners as public agents acting for the benefit of the intended corporation. But, as already seen, in some cases the trustees are the corporation, and when such is the case, they may bring an action in their own names alleging their corporate character.5 Under some schemes of incorporation the

company is empowered to sue its shareholders in the name of one of its officers called in England "its public officer."1 Similar statutes have existed in this country. Under a banking law of the State of New York, such an action was properly brought in the name of the president of the corporation. In South Carolina where, by the terms of the subscription paper, the installments were to be paid "to the treasurer of the company," an action was maintainable by any one who might be treasurer at the time the action was to be commenced. In whatever way the action is brought, provided it be the authorized and proper way, the objection which is good where one partner sues another at law is, of course, not available; it is no objection that the defendant is a member of the plaintiff corporation or joint-stock company.*

§ 1816. Action in Original Name in Case of Change of Name. Where subsequently to the subscription the name of the corporation has been changed, it is not a good defense that the action against the shareholder was brought by the corporation in its original name, instead of in the name conferred upon it by the supplemental act of the legislature, provided the misnomer had not been pleaded in abatement.5 In so holding Gibson, C. J., made the following observations: "It was, indeed, said by Chief Justice Treby, in Britton v. Gradon, that a judgment against a corporation by a wrong name is void; on which it is remarked in Kyd on Corporations, 285, that it is indeed true that in most of the cases where the question of misnomer of a corporation has been agitated, it has arisen on a special verdict; but I apprehend that where a corporation have

1 Lind. Comp. 5th ed. 427. Chapman v. Milvain, 5 Exch. 61; Wills v. Sutherland, 4 Exch. 211; s. c. aff'd, 5 Exch. 715; Skinner v. Lambert, 4 Man. & Gr. 477; Lawrence v. Wynn, 5 Mees. & W. 355; Smith v. Goldsworthy, 4 Ad. & El. (N. 8.) 430, where the action was brought in the name of the company. See also Welland R. Co. v. Blake, 6 Hurl. & N. 410. In English "cost-book" companies the purser

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can sue. St. 32 & 33 Vict. ch. 19,, § 13.

2 Stanton v. Wilson, 2 Hill (N. Y.), 153.

3 Silk Co. v. Anderson, 1 McMull. (S. C.) 300.

4 Willoughby v. Comstock, 3 Hill. (N. Y.) 389.

5 Gray v. Monongahela Nav. Co., 2 Watts & S. (Pa.) 156; s. c. 37 Am. Dec. 500, 504; Ante, §§ 289, 291, 400. 6 1 Ld. Raym. 119.

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taken no advantage of a variance from their name, either by plea or at the trial, they cannot arrest the judgment on that account.' Surely the rule must be the same where the corporation is plaintiff. It seems, however, that if the variance be apparent in the entry of the judgment, it may be error; as in Healings v. The Mayor, Commonalty, and Citizens of London,1 where the judgment was that the mayor, commonalty and citizens should recover their debt and costs to the same mayor and commonalty adjudged (omitting the word citizens), it was held error. But as there is no such discrepancy in the record before us, which contains but one designation of the plaintiff throughout, there is no room in the case even for this sharp distinction; and the exception that the court ought not to have rendered judgment on the verdict is not sustained." 2

§ 1817. Authority of an Agent to Sue in the Corporate Name. Where the subscriptions were in terms payable to the treasurer, and the directors voted that the treasurer be authorized to obtain the assistance of H. in making collections of the unpaid subscriptions, and afterwards voted that the treasurer be authorized to obtain such legal counsel as he should see fit as to such collections, this was held a sufficient authority for the institution of a suit by H, in the corporate name and behalf, against a subscriber to the capital stock."

§ 1818. Actions by Assignee of Stock Subscriptions.— A corporation clothed with general powers to dispose of its securities or assets for the purpose of prosecuting the corporate enterprise, may sell, instead of endeavoring to collect, a subscription to its stock. And the title of the assignee will be protected, if acquired in good faith and for value, against a subsequent proceeding by garnishment against the company, even though no formal assignment in writing was ever executed. And if the stock subscription is made upon a valid condition, and the

1 Cro. Car. 574.

2 Gray v. Monongahela Nav. Co., 2 Watts & S. (Pa.) 156; s. c. 37 Am. Dec. 500, 504. That a misnomer of a corporation plaintiff can be taken advantage of only by plea in abatement was held in Rheem v. Naugatuck

Wheel Co., 33 Pa. St. 363, and in Fritz v. Commissioners, 17 Id. 135.

8 Athol Music Hall Co. v. Carey, 116 Mass. 471. Compare Davis v. Smith American Organ Co., 117 Mass. 456.

4 Morris v. Cheney, 51 Ill. 451.

assignee performs the condition, he may maintain an action against the subscriber to enforce the contract,-as in case of a subscriber to a railroad on condition of its being built on a certain route. Where an insolvent corporation has made a deed of trust for the benefit of creditors, expressly assigning unpaid subscriptions, but giving no power to make calls for the unpaid balance of subscriptions, upon the failure of the president and directors to make proper assessments, it is the duty of a court of chancery to administer the remedy;2 and, as hereafter seen,3 the doctrine of equity is that, although a corporation may not have made such a voluntary assignment, yet a court of equity has power to collect the assets of the corporation and administer them for its creditors in the event of its insolvency, and, in so doing, to require the shareholders to pay in to the court's receiver enough of their unpaid subscriptions for this purpose, and to empower its receiver to sue for the same at law; and the English courts proceed on the same principles, though under statutory rules, in winding up companies.1

§ 1819. By State Treasurer. —A subscription authorized by the legislature, to raise a fund for the building of a state-house, by which the subscribers agree to pay into the treasury of the State the sums opposite their names, constitutes a simple contract obligation in favor of the State, and the State treasurer has been held the proper officer to sue therefor.5

§ 1820. Non-Joinder of Other Stockholders. As the obligation of each subscriber is several and not joint, so each must severally respond on his contract of subscription to the calls which are made upon him, without reference to the others; and hence where an action is brought upon such a call the non-joinder of the other stockholders is no defense or ground of exception, even where the suit, under a particular statute, is in equity, or where the status of the subscriber is merely that of a partner in a joint-stock company."