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ground that the property is essentially necessary to the enjoyment of the corporate rights and privileges of the company; and that, such being the case, it could make no difference whether it was situated upon the site of the canal or upon adjacent ground. It was on like grounds extended to the locks, wharf, house, and land belonging to a canal company, and necessary to the operation of the canal. Within the same principle has been included a corporation organized " to protect life and property in or contiguous to burning buildings, and to remove and take charge of such property,” – this being regarded as a quasi-public body, whose property is necessary to the carrying out of the public objects for which it was created.'
§ 7855. Cases to Which This Exemption does not Extend. - This exemption is founded alone on the consideration
. that the corporation has public duties to perform, and that it would be disabled from performing them by the deprivation of the property thus exempted. The reason upon which the exemption is founded has no application to ordinary business corporations, formed for mining, manufacturing, or trading, with the continued existence of which the public has no special concern.
Such corporations are now freely allowed to be created under enabling statutes, and the power conferred upon them by such statutes can scarcely be called franchises. If their property is sold under execution, the purchasers may as freely incorporate themselves to own and use it, or they may own and use it without becoming so incorporated. The principle, therefore, has no application to such corporations, but their property is vendible in execution equally with that of individuals. In other directions the exemption extends
Susquehanna Canal Co. v. Bon- • Boyd's Appeal (Pa.), 15 Atl. Rep. bam, 9 Watts & S. (Pa.) 27 ; 8. C. 42 736. It was therefore held that its Am. Dec. 315. The same exemption property
as not leviable under an was extended to the cars belonging to execution apart from its franchises, and used by a railroad company, and but that proceedings must be had upon the same grounds. Covey v. under the act of 1870. Ibid. Pittsburgh &c. R. Co., 3 Phila. (Pa.) * This is substantially the view of 180. But see ante, ( 7851.
Mr. Freeman, as shown by a learned ? Gue v. Tide Water Canal Co., 24 note in 15 Am. Dec. 595. How. (U.S.) 257, 263.
no further than the reason on which it is founded. Property which is not necessary to the performance, by a corporation, of its public duties, is not within the exemption. Thus it has been held that a canal basin is not a legitimate incident to a railroad, having no authorized canal connection, and is not protected from levy and sale on execution against the railroad company. So, where a corporation abandons a por. tion of its franchises, the property which it employed in the exercise of those franchises becomes subject to execution. Thus, where a railroad company ceases to use a portion of its road for public purposes, and proceeds to take up and carry away the rails, they may be levied upon and sold.”
8 7856. Decisions Denyirg This Exempcion. – Decisions are not wanting which deny that the property of corporations is exempted from execution on the theory of being necessary to the perforınance of their public duties. These decisions concede that the franchise of a corporation cannot be taken in execution, unless the State has so provided, because the purchaser would thereby become a new corporation; but they hold that the property of a corporation may be taken in execution, like the property of an individual, unless the legislature has seen fit to declare, as a principle of public policy, an exemption in its favor.:
· Plymouth R. Co. 0. Colwell, 39 A chartered railroad is property. The Pa. St. 337 ; 8. C. 80 Am. Dec. 526. rights and privileges conferred by
• Benedict v. Heineberg, 43 Vt. charter to use it as an instrument of 231.
transportation, are also property; for * State v. Rives, 5 Ired. L. (N. 0.) they adhere to it as accessories or in297; Atlanta v. Grant, 57 Ga. 340. cidents, and add to its value. WithThe opinion in this case by Bleckley, out them the railroad, as such, would J., though short, contains the fol.
be almost, or quite, useless. To own lowing striking observations: “The it, would be like owning a horse, with franchise to be a corporation is what no right to ride him or drive him – constitutes an artificial person. That no right to put him to labor. This is breath or being, and not property. would be owning materials merely; You cannot sell it any more than you the iron and timbers, the earth and can sell the life of a man. But things, masonry, of the railroad; or the hide and the right to use things for profit, and filesh and bones of the horse. are property, whether in the hands of Whatever belongs to a corporation is a corporation, or of a natural person. subject to be applied to the payment of 8 7857. Statutes Abolishing This Exemption. It is stated by Mr. Freeman, in a learned note in the American Decisions, that in most States statutes have been enacted under which franchises, and all property connected therewith, may be made available in satisfaction of judgments recovered against their owners. A tendency has been discovered in one case to construe such a statute strictly, on the theory of its being in derogation of the common law; but this means no more than that, the statute having created a power which did not exist before, and prescribed the mode of its exeroise, the levying officer cannot go outside of the statute for his authority to proceed, or for a direction as to the manner of proceeding.'
§ 7858. Levying upon the Franchise of Taking Tolls and upon Tolls to Accrue under a Franchise. — There is some confusion in the decisions upon this subject. The Supreme Court of the United States have held that the franchise or right to take toll on boats going through a canal, is not vendible in execution, unless there is a statute so providing; because such franchise is an incorporeal hereditament, which cannot be seized under a fieri facias, under the principles of the common law. The same court, in an earlier decision, held that, under å statute of Indiana prohibiting the sale of lands and tenements under execution until the rents and profits thereof for
its debts. It has no exempt property. sold on execution. Philadelphia &o. In this state only the heads of fam- R. Co.'s App., 70 Pa. St. 355; ante, ilies are entitled to withhold any of
$ 7849. their assets from creditors. All other • James v. Pontiac &c. Plank Road debtors must pay if they can, Their Co., 8 Mich. 91. That the rule of the property, both legal and equitable, is strict construction of statutes is an inall subject. What cannot be reached fringement upon legislative power, by strictly legal process, may be
see the author's views, ante, 9 3014. brought in by appealing to the powers • Gue v. Tide Water Canal Co., 24 ble powers of a court of law.” Ibid., pets v. Walker, 4 Mass. 595, where
the power to levy on the franchise of 115 Am. Dec. 596.
taking tolls was doubted by Parsons, * Thus, in 1870, the Legislature of O.J.; and also the statement of Gray, Pennsylvania passed an act provid- J., in Richardson v. Sibley, 11 Allen ing that the franchises and other (Mass.), 65, 71; 8. C. 87 Am. Dec. 700, property of corporations might be 704.
57 Ga. 346.
a term not exceeding seven years should have been first offered for sale at public auction, etc., the tolls to be paid by the public for using a public bridge during a period of time within the period named in the statute, - in the particular case for one year, - might be levied upon and sold under an execution. But as the tolls, when collected, would be in the possession of the judgment debtor, the remedy of the creditor was surrounded with such embarrassments that equity would aid him, by the appointment of a receiver, to collect the tolls and pay them into court for his benefit.'
8 7859. Effect of Levy upon Personal Property Subject to Existing Mortgages. — The effect of the levy of an execu
tion upon personal property of a corporation which is subject to existing mortgages, as for instance, upon the rolling stock of a railway company, is said to give the levying creditor & lien as to any interest of the mortgagors which is subject to the levy, such as possession coupled with a beneficial use, – which we suppose means that the purchaser at the execution sale might acquire a right to the beneficial use of the property until the prior mortgagee should elect to foreclose, or to take possession under his mortgage. But where a suit to foreclose has been brought, and in such suit a receiver has been appointed, and, under the orders of the court, the receiver has taken possession of the mortgaged property, it seems that no rights are acquired by the levying creditor.:
8 7860. Levying upon the Assets of a Dissolved Corporation, or a Corporation in Liquidation. - It seems that an execution cannot be levied upon the assets of . dissolved corporation, unless the statute law so provides; because, at common law the land reverted to the grantor, and the personalty fell into the hands of the State. In such a case the remedy
Covington Drawbridge Co. v. Shepherd, 21 How. (U. S.) 112, 124.
* Coe v. Columbus &c. R. Co., 10 Ohio St. 372; 8. C. 75 Am. Dec. 518, 542; citing Curd v. Wunder, 5 Ohio St. 93.
• Ibid. Compare ante, 8 6200.
• Ante, $ 6718. In an old case which was an information against the mayor and commonalty of Colchester for not repairing a bridge, it was said that if the corporation be
of the judgment creditor would be to proceed in equity to have a receiver appointed in aid of his execution, and to have the property administered as a trust fund for creditors and stockholders. If the corporation is in liquidation under a statute by which its directors are made its trustees to wind up its affairs, or in the hands of a receiver appointed by a court of equity, then an execution cannot be levied upon its property; because to allow this would give preference to a particular creditor and allow him to impair or destroy the fund which the law has put in pledge for the benefit of all. But if the directors, acting as trustees, under such a statute, neglect for a number of years — in the particular case for four years — to apply the trust property to the discharge of a judgment against the company, and it does not appear that there are other creditors, an injunction will not issue to restrain the judgment creditor from selling the trust property on execution. So, if the sheriff has made the levy prior to the appointment of a receiver, a sale of the property thereafter will not, it has been held, be absolutely void as against the creditor in the execution, but at most, irregular.”
ARTICLE II. WRIT AND PROCEEDINGS THEREUNDER.
7865. Misnomer in the writ.
§ 7865. Misnomer in the Writ. — The execution must follow the judgment; therefore, where the execution is against a corporation in pame substantially different from that against which the judgment was rendered, the levy must fall. Im
no execution can be had 1 Good v. Sherman, 37 Tex. 660. against them if they were found • Varnum v. Hart, 119 N. Y. 101 ; guilty; and this was not denied, but 8. C. 28 N. Y. St. Rep. 262; 23 N. E. it was also laid down that if the in- Rep. 183. habitants be named, all lands are * Bradford v. Water Lot Co., 58 chargeable, though the corporation Ga. 280. be dissolved by statute.