clared by statute in several States. Nevertheless, it has been said that some restriction upon this right is generally found, either in the object of the incorporation or in the nature of the property. But it is very properly conceded that where such a restriction does not apply, a corporation may be regarded as occupying the position of an individual owner. "There would be the same right of voluntary alienation, and a like liability to involuntary alienation. What the company could convey, its creditors might subject." It follows that the property, whether real or personal, of corporations which are formed for the prosecution of objects of personal benefit, such as banking, trading, and manufacturing companies, may be seized and sold for the payment of the debts of the corporation, in like manner as the property of individual debtors may be seized and sold. A corporation cannot therefore claim that its funds are exempt from the process of its creditors, because it needs them for the repair of its works, or has by resolution set them aside for that purpose, unless those works are affected with a public interest. And even then, whatever exemption from execution the law annexes to the property of private corporations necessary for the performance of their public duties, under the principles hereafter stated, may be waived by the legislature; and the power of the legislature to subject the property of a corporation, of whatever description, to the payment of its debts, is undeniable." 3 § 7848. Otherwise as to Property of Corporations Created for Public Objects. But in respect of corporations created for public objects, such as railway, turnpike and canal companies, the view is that property belonging to such corporations, which is indispensable to the exercise of the franchises con ferred 1 Coe upon them and to the performance of the correlative v. Columbus &c. R. Co., 10 Ohio St. 372, 377; 8. c. 75 Am. Dec. 518, 520, 521. 205; s. c. 26 Am. Dec. 561; EvangelState v. Bank, 6 Gill & J. (Md.) • Louisville &c. Co. v. Ballard, 2 Metc. (Ky.) 165. duties which they have assumed in behalf of the public, is not vendible in execution for the satisfaction of their debts.1 Thus, a creditor of a turnpike company cannot levy upon and sell, under his execution, a section of the company's road.' Neither can a creditor of a canal company levy his execution, as was attempted in one case, "on a house and lot, sundry canal boats, a wharf and sundry other lots"; and in such a case an injunction will be granted to restrain the sale.' So, a railway and its appurtenances, being necessary to the exercise of the franchise granted by the State, cannot be levied on and sold under an execution on a judgment against the corporation. So, where the plaintiff purchased, at a sale at execution against a navigation company, certain lands which had been condemned for its use under the provisions of its act of incorporation, including the bed covered by the waters of its canal at its terminus, and thereafter brought an action to recover its possession, it was held that he must be nonsuited." - § 7849. Sequestration of Earnings. In such a case the statute law has intervened in some States and provided for the sequestration of the tolls or earnings of the corporation, while allowing it to proceed with its public duties. 1 Foster v. Fowler, 60 Pa. St. 27. 'Ammant v. New Alexandria &c. Turnp. Co., 13 Serg. & R. (Pa.) 210; 8. c. 15 Am. Dec. 593. Gue v. Tide Water Canal Co., 24 How. (U.S.) 257. It was said, among other things, by Chief Justice Taney, in giving the opinion of the court in this case, that it would be against the principles of equity to allow a single creditor to destroy a fund to which other creditors have a right to look for payment, and equally against the principles of equity to permit him to destroy the value of the property of the stockholders, by dissevering from the franchise property which was essential to its useful existence. 'Youngman v. Elmira &c. R. Co., 65 Pa. St. 278; Plymouth R. Co. v. Colwell, 39 Pa. St. 337; s. c. 80 Am. Dec. 526. Two cases which impugn this doctrine are State v. Rives, 5 Ired. L. (N.C.) 297, and Arthur v. Commercial &c. Bank, 9 Sm. & M. (Miss.) 394; s. c. 48 Am. Dec. 719, which follows State v. Rives. The former case is overruled by the same court in Gooch v. McGee, 83 N. C. 59; s. c. 35 Am. Rep. 558; and the latter is discredited by the case last cited and by the whole current of judicial authority. But in Coe v. Columbus &c. R. Co., 10 Ohio St. 372, 403; s. c. 75 Am. Dec. 518,- it was held that such a levy could be made. -- Gooch v. McGee, 83 N. C. 59; 8.c. 35 Am. Rep. 558. See Rev. Code N. C. 1883, ch. 16, § 671, et seq. When this question § 7850. Liens of Judgments upon Railroad Property. A statute creating a lien upon the real estate of judgment defendants within the county in which judgments may be was first before the Supreme Court of Pennsylvania, it was suggested by Tilghman, C. J., that the legislature ought to remedy the defect in the law, by providing for some mode of sequestration by which the profits arising from the operation of plank roads might be secured to the creditors of the respective companies. "But," he added, "in providing this remedy the public interest will not be neglected; care will be taken that so much of the tolls as is necessary shall, in the first place, be applied to the repair of the road, and only the net profits subject to the payment of debts." Ammant v. New Alexandria &c. Turnp. Road, 13 Serg. & R. (Pa.) 210; s. c. 15 Am. Dec. 593. Eleven years afterwards this suggestion was acted upon by the legislature, and an act was passed providing for the sequestration of the profits (Penn. Act of June 16, 1836) of corporations to satisfy judgments against them. See Reed v. Penrose, 36 Pa. St. 214, 240; 8. c. 2 Grant Cas. (Pa.) 500; Loudenschlager v. Benton, 3 Grant Cas. (Pa.) 390; Foster v. Fowler, 60 Pa. St. 27; Plymouth R. Co. v. Colwell, 39 Pa. St. 337, 339; s. c. 80 Am. Dec. 526; Susquehanna Canal Co. v. Bonham, 9 Watts & S. (Pa.) 27. This statute was superseded by another statute, passed in 1870, the sole purpose of which is held to have been to supersede the remedy by sequestration and to substitute therefor the ordinary mode of levy and sale, under fieri facias, of the property, franchises and rights of the corporation. Iron City Nat. Bank v. Siemens-Anderson Steel Co., 14 Fed. Rep. 150. As to the construction and effect of this latter statute, see Philadelphia &c. R. Co's App., 70 Pa. St. 355; Bayard's App., 72 Pa. St. 453; Hopkins's App., 90 Pa. St. 69; Longstreth v. Philadelphia &c. R. Co., 11 W. N. Cas. (Pa.) 309. It will be recalled that land could not be sold under execution at common law, but that the satisfaction of judgments out of land could only be had by the species of sequestration called extending an elegit. This principle, no doubt, obtained in the American colonies at an early day, and traces of it were found in the statute laws of some of the States at a later period. Thus, by the laws of Indiana, as recited in a judgment of the Supreme Court of the United States (Covington Drawbridge Co. v. Shepherd, 21 How. (U. S.) 112, 124, anno 1858), lands and tenements could not be sold under execution until the rents and profits thereof for a term not exceeding seven years should have been first offered for sale at public auction; and if that term, or a less one, should not satisfy the execution, then the estates or interest of the debtor might be sold, provided it brought two-thirds of its appraised value. Under this statute the tolls of a bridge company were levied upon and sold under an execution against it; and it was held that, in such a case, the remedies of the creditor were surrounded with such embarrassment that he might maintain a bill in equity in aid of his execution at law, and have a receiver appointed to collect the tolls and pay them into court for the purpose of discharging his judgment. Covington Drawbridge Co. v. Shepherd, 21 How. (U.S.) 112, 124. In further rendered, is applicable to railroad property. If there is a statute declaring that the rolling stock of a railroad corporation shall be deemed a fixture, then such a judgment becomes a lien at once upon the road and rolling stock; although the effect of the lien might be nothing more than to give the judgment creditor a priority in distribution in case of a sale of the road by a proceeding in equity. The lien-holder may maintain a suit in equity for the enforcement of his lien after the railroad property has passed, under a subsequent mortgage, into the hands of a new owner.' There is no difficulty in the conclusion that lands purchased by the railroad company, beyond what are actually dedicated to its public duties, are bound by the lien of judgments against it, and are liable to be levied upon under executions and sold, like the lands of any other debtor." 5 § 7851. Rolling Stock Vendible under Execution. -The generally prevailing doctrine that the rolling stock of a railroad company is personal property has a corollary in the proposition that it is vendible under an execution against the company. Courts have refused to extend the exemption stated in a preceding section' to this species of property, because of the difficulty of determining what portion of the rolling stock possessed by the railroad company may be really necessary for the performance of its public duties,-taking the 1 Ludlow v. Clinton Line R. Co., 1 Flipp. (U. S.) 25; Railroad Co. v. James, 6 Wall. (U. S.) 750. Railroad Co. v. James, 6 Wall. (U.S.) 750. ance of the same policy of preserving provisions are quoted and commented intact the corporate privileges vested upon. for the public benefit, it has been enacted that purchasers of the property at mortgage sale shall, ipso facto, become a body corporate and "succeed to all such franchises, rights and privileges, and perform all such duties" as the preceding corporation possessed, except that they shall not incur liability for its obligations. Bat. Rev. N. C. Stat., ch. 26, §§ 46, 47. See Gooch v. McGee, 83 N. C. 59; 8. c. 35 Am. Rep. 558, 563, where these • Ibid. ♦ Plymouth R. Co. v. Colwell, 39 Pa. St. 337; 8. c. 80 Am. Dec. 526. See post, § 8097. • Hoyle v. Plattsburgh &c. R. Co., 54 N. Y. 314; 8. c. 13 Am. Rep. 595. Ante, § 7848. 1 3 view that it is wiser to leave the question of such an exemption to the legislature.1 § 7852. Alienation through Sales to Enforce Mechanics' Liens. On grounds of public policy, the power to sell a railway bridge, or other section of a railway line, under judicial process to enforce a mechanic's lien, has been denied; since, if the exercise of this power were allowed, the interruption of a great line of railway travel, and consequently great public inconvenience, might flow from a successful effort at collecting a small private debt.2 In like manner, it has been held that a railroad bridge is not subject to a mechanic's lien, as being a building, within the meaning of a statute making every "dwelling-house or other building" subject to a lien in favor of mechanics and material-men. But a building erected for a railway company for any of its uses, such as a station house, freight house, etc., may well be regarded as a building within the meaning of such a statute. § 7853. Corporate Franchises not Subject to Execution. Unless there is a statute providing otherwise, the franchise of a corporation—by which is meant its right to be a corporation, and as such to carry on a particular business, and to exercise certain powers and enjoy certain immunities,-cannot be taken in execution. The reason is twofold, the one technical and the other substantial. The technical reason is that a franchise, being an incorporeal hereditament, cannot, upon art v. Jones, 40 Mo. 140; Susquehanna Canal Co. v. Bonham, 9 Watts & 8. (Pa.) 27; 8. c. 42 Am. Dec. 315; Ammant v. New Alexandria &c. Turnp. Co., 13 Serg. & R. (Pa.) 210; 8. c. 15 Am. Dec. 593; Arthur v. Commercial &c. Bank, 9 Smedes & M. (Miss.) 394, 431; s. c. 48 Am. Dec. 719, per Clayton, J; State v. Rives, 5 Ired. L. (N. C.) 297, 306, per Ruffin, C. J. Coe v. Columbus &c. R. Co., 10 Ohio St. 372, 377; s. c. 75 Am. Dec. 518, 521. |