« AnteriorContinuar »
duties which they have assumed in behalf of the public, is not vendible in execution for the satisfaction of their debts. 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 gome 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. Colwell, 39 Pa. St. 337; 8. C. 80 Am.
· Ammant v. New Alexandria &c. Dec. 526. Two cases which impugn Turnp. Co., 13 Serg. & R. (Pa.) 210; this doctrine are State v. Rives, 5 8. c. 15 Am. Dec. 593.
Ired. L. (N.C.) 297, and Arthur v.Com8 Gue v. Tide Water Canal Co., 24 mercial &c. Bank, 9 Su. & M. (Miss.) How. (U.S.) 257. It was said, among 394; 8. C. 48 Am. Dec. 719, which folother things, by Chief Justice Taney, lows State v. Rives. The former case in giving the opinion of the court in is overruled by the same court in this case, that it would be against the Gooch v. McGee, 83 N. C. 59; 8. c. 35 principles of equity to allow a single Am. Rep. 558; and the latter is discreditor to destroy a fund to which credited by the case last cited and by other creditors have a right to look the whole current of judicial authorfor payment, and equally against the ity. But in Coe v. Columbus &c. R. principles of equity to permit him to Co., 10 Ohio St. 372, 403; 8. c. 75 Am. destroy the value of the property of Dec. 518, – it was held that such a the stockholders, by dissevering from levy could be made. the franchise property which was es- • Gooch v. McGee, 83 N.C.59; 8. C. sential to its useful existence.
35 Am. Rep. 558. • Youngman v. Elmira &c. R. Co., • See Rey. Code N. C. 1883, ch. 16, 65 Pa. St. 278; Plymouth R. Co. v. $ 671, et seg. 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 this latter statute, see Philadelphia of Pennsylvania, it was suggested by &c. R. Co's App., 70 Pa. St. 355; BayTilghman, C. J., that the legislature ard's App., 72 Pa. St. 453; Hopkins's ought to remedy the defect in the App., 90 Pa. St. 69; Longstreth v. law, by providing for some mode of Philadelphia &c. R. Co., 11 W. N. sequestration by which the profits
Cas. (Pa.) 309. It will be recalled arising from the operation of plank that land could not be sold under exeroads might be secured to the cred- cution at common law, but that the itors of the respective companies.
satisfaction of judgments out of land "But,” he added, “in providing this could only be had by the species of remedy the public interest will not sequestration called extending an be neglected; care will be taken that elegit. This principle, no doubt, ob80 much of the tolls as is necessary
tained in the American colonies at an shall, in the first place, be applied to early day, and traces of it were found the repair of the road, and only the in the statute laws of some of the net profits subject to the payment of
States at a later period. Thus, by debts.” Ammant v. New Alexandria the laws of Indiana, as recited in a &c. Turnp. Road, 13 Serg. & R. (Pa.) judgment of the Supreme Court of 210; 8. C. 15 Am. Dec. 593. Eleven the United States (Covington Drawyears afterwards this suggestion was bridge Co. v. Shepherd, 21 How. (U. acted upon by the legislature, and an 8.) 112, 124, anno 1858), lands and act was passed providing for the
tenements could not be sold under sequestration of the profits (Penn. execution until the rents and profits Act of June 16, 1836) of corporations
thereoi for a term not exceeding seven to satisfy judgments against them. years should have been first offered See Reed v. Penrose, 36 Pa. St. 214, for sale at public auction; and if that 240; 8. C. 2 Grant Cas. (Pa.) 500; term, or a less one, should not satisfy Loudenschlager v. Benton, 3 Grant the execution, then the estates or inCas. (Pa.) 390; Foster v. Fowler, 60
terest of the debtor might be sold, Pa. St. 27; Plymouth R. Co. v. Col- provided it brought two-thirds of its well, 39 Pa. St. 337, 339; 8. c. 80 Am. appraised value. Under this statute Dec. 526; Susquehanna Canal Co. v. the tolls of a bridge company were Bonham, 9 Watts & S. (Pa.) 27. This levied upon and sold under an execustatute was superseded by another tion against it; and it was held that, statute, passed in 1870, the sole pur- in such a case, the remedies of the pose of which is held to have been to creditor were surrounded with such supersede the remedy by sequestra- embarrassment that he might maintion and to substitute therefor the tain a bill in equity in aid of his exeordinary mode of levy and sale, under cution at law, and have a receiver apfieri facias, of the property, fran- pointed to collect the tolls and pay chises and rights of the corporation. them into court for the purpose of Iron City Nat. Bank v. Siemens-An- discharging his judgment. Covingderson Steel Co., 14 Fed. Rep. 150. ton Draw bridge Co. v. Shepherd, 21 As to the construction and effect of How. (U. 8.) 112, 124. In further.
rendered, is applicable to railroad property.' If there is a stat. ute 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 conclu. sion 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.
8 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
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 1 Ludlow v. Clinton Line R. Co., 1 enacted that purchasers of the prop- Flipp. (U. S.) 25; Railroad Co. o. erty at mortgage sale shall, ipso facto, James, 6 Wall. (U. S.) 750. become a body corporate and
• Railroad Co. v. James, 6 Wall. ceed to all such franchises, rights (U. S.) 750. and privileges, and perform all such duties” as the preceding corporation Plymouth R. Co. o. Colwell, 39 possessed, except that they shall not Pa. St. 337; 8. C. 80 Am. Dec. 526. incur liability for its obligations. Bat. • See post, $ 8097. Rev. N. C. Stat., ch. 26, OS 46, 47. Hoyle v. Plattsburgh &c. R. Co., See Gooch v. McGee, 83 N. C. 59; 8. C. 64 N. Y. 314; 8. C. 13 Am. Rep. 595. 35 Am. Rep. 558, 563, where these Ante, $ 7848.
view that it is wiser to leave the question of such an exemption to the legislature.'
§ 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. 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., inay 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
· Boston &c. Railroad v. Gilmore, art v. Jones, 40 Mo. 140; Susquehanna 37 N. H. 410; 8. c. 72 Am. Dec. 336, Canal Co. v. Bonham, 9 Watts & 8. 340.
(Pa.) 27; 8. C. 42 Am. Dec. 315; Am· Ante, $ 7848.
mant v. New Alexandria &c. Turnp. • La Crosse &c. R. Co. v. Vander- Co., 13 Serg. & R. (Pa.) 210; 8. c. 15 pool, 11 Wis. 119; 8. c. 78 Am. Dec. Am. Dec. 593; Arthur v. Commercial 691.
&c. Bank, 9 Smedes & M. (Miss.) 394, • Hill v. La Crosse &c. R. Co., 11
431 ; 8. C. 48 Am. Dec. 719, per ClayWis. 214, 224; distinguishing La
ton, J; State v. Rives, 5 Ired. L. Crosse &c. R. Co. 0. Vanderpool, 11
(N. C.) 297, 306, per Ruffin, C. J. Wis. 119; 8. c. 78 Am. Dec. 691
Coe v. Columbus &c. R. Co., 10 Ohio . Ante, $ 5364; Gue r. Tide Water
St. 372, 377; 3. C. 75 Am. Dec. 618, Canal Co., 24 How. (U. S.) 257 ; Stewo
the settled principles of the common law, be seized under a fieri facias. The substantial reason is that corporations are generally created in consideration of an obligation on their part to perform certain public duties; from which it follows that the object of their creation might be defeated if their franchises could be seized in execution by any creditor, who might or might not be able to exercise them.”
§ 7854. Nor is Property Necessary to Enjoyment of Corporate Franchises. — The principle which exempts from execution the franchises of a corporation equally exempts such of its property as is necessary for the enjoyment of its franchises. Accordingly it has been held that a section of the road-bed of a turnpike company is not subject to execution. “The inconvenience would be excessive if the right of the company could be cut up into an indefinite number of small parts and vested in individuals.”. Upon the same principle
4 it has been held that a house occupied by a collector of tolls on a canal is exempt from levy and sale under a writ of fieri facias against the canal company. The court proceed upon the
Those franchises are in the nature of a trust committed to the corporation by the public, and upon obvious grounds they cannot barter away this trust to another unless the legislature has permitted them to do so. Philadelphia v. Western Union Tel. Co., 11 Phila. (Pa.) 328. See ante, $ 5352,
· Gue v. Tide Water Canal Co., 24 How. (U. S.) 257, 263; Stewart v. Jones, 40 Mo. 140; Munroe v. Thomas, 5 Cal. 470; Thomas v. Armstrong, 7 Cal. 286; Winchester &c. Turnp. Co. v. Vimont, 5 B. Mon. (Ky.) 1; Arthur v. Commercial &c. Bank, 9 Smedes & M. (Miss.) 394, 431 ; 8. C. 48 Am. Dec. 719; Ludlow v. Hurd, 6 Am. Law Reg. 493; Hatcher v. Toledo &c. R. Co., 62 Ill. 477; Seymour v. Milford &c. Turnp. Co., 10 Ohio, 476; Freeman on Ex., $ 179; Talcott v. Township of Pine Grove, 1 Flipp. (U. S.) 120.
? Susquehanna Canal Co. v. Bonham, 9 Watts & S. (Pa.) 27; 8. C. 42 Am. Dec. 315. Upon the same principle, it has been held that a corporation has no power, unless such power is given by statute, to transfer its franchises and corporate rights.
8 Gue v. Tide Water Canal Co., 24 How. (U. S.) 257; Ammant v. New Alexandria &c. Turnp. Co., 13 Serg. & R. (Pa.) 210; 8. c. 15 Am. Dec. 593; Susquehanna Canal Co. v. Bonham, 9 Watts & S. (Pa.) 27; 8. C. 42 Am. Dec. 315. See also ante, 18 5358, 5373. Contra, State v. Rives, 5 Ired. L. (N. C.) 297, 306.
• Ammant v. New Alexandria &c. Turnpike Co., 13 Serg. & R. (Pa.) 210; 8. c. 15 Am. Dec. 593.