Markson et al. v. Haney. case in respect to questions of fact, especially where there are jury trials. But, what is worse, different sales of the same property, made under the authority of two different tribunals, each claiming to have jurisdiction over the subjectmatter, would lead to profitless litigation involving questions of conflict of jurisdiction. All these evils may be avoided by recognizing the legal proposition that where a court of bankruptcy has thus first acquired jurisdiction, that jurisdiction is exclusive so long as the proceedings in bankruptcy are pending. A case has been cited to show that assignees in bankruptcy may go into a state court to set aside a fraudulent conveyance made by the bankrupt. Gilbert v. Priest, 63 Barb. 339. The case does not seem to be in point here, for it would by no means follow that if a state court could take jurisdiction in such case, it could also take jurisdiction of matters rightfully pending in the court in bankruptcy. The case, however, was decided by a single judge, and the decision was subsequently reversed. See the same case in 65 Barb. 444. The current of decisions, so far as we are advised, would seem to establish the proposition that state courts have no jurisdiction in such cases. Newman v. Fisher, 37 Md. 259;. Brigham v. Claflin, 31 Wis. 607; Voorhies v. Frisbie, 25 Mich. 476. As to cases where suit has been instituted in a state court before proceedings in bankruptcy have been commenced, see the case of Peck v. Jenness, 7 How. 612. In this case, there was an answer in abatement filed, setting up the proceedings in bankruptcy, which was held bad on demurrer. Perhaps this answer should have been held good. On this question we express no opinion, as no point is made upon it. If the case ought to have gone out of court on the answer, still the appellee can not complain that a less summary disposition of it was asked. Even if the pendency of the bankruptcy proceedings were matter of abatement, still the motion to stay proceedings was entirely proper, inasmuch as the lands might eventually have been sold in the bank Nelson v. Blakey, Assignee. ruptcy proceedings, subject to the mortgage, in which event Haney would have the right to proceed with his foreclosure by making the proper parties. To be sure, an order had been obtained by the assignees to sell the lands clear of the mortgage, but that order was, of course, subject to be changed by the court. It is objected by counsel for the appellee that the question we have been considering is not before us, because the overruling of the motion to stay proceedings was not made the ground of a motion for a new trial. But this is not one of the causes for which it is provided that a new trial may be had. 2 G. & H. 211, sec. 352. The overruling of the appellants' motion was not an order that prevented the appellants from having a fair trial. The motion was not based upon the theory that the appellants were not then prepared for, and could not then have, a fair trial, but upon the theory that they could not be compelled to go into a trial at all as long as the proceedings in bankruptcy were pending. The question had nothing whatever to do with the fairness of the trial had. For the error in overruling the motion to stay proceedings, the judgment below must be reversed. The judgment below is reversed, with costs, and the cause remanded, with instructions to the court below to stay pro ceedings until the close of the proceedings in bankruptcy. Petition for a rehearing overruled. NELSON V. BLAKEY, ASSIGNEE. PRACTICE.-Demurrer.-A ruling upon a demurrer to a complaint in a justice's court can not, in the Supreme Court, be assigned as error. SAME.-Where, on appeal from a justice of the peace to the circuit court, the plaintiff demurs to an answer, the demurrer reaches back to the complaint. Nelson v. Blakey, Assignee. CORPORATION.-Pleading.—In an action on the original articles of association to recover a subscription to a corporation to be formed, the complaint must show that all the requisites of the statute for the organization of the corporation have been complied with. From the Posey Circuit Court. A. P. Hovey and G. V. Menzies, for appellant. 7. H. Laird, for appellee. BUSKIRK, J.-This was an action by the Mount Vernon Masonic Hall Company against the appellant, to collect from him the sum by him subscribed to the preliminary articles of association. The action originated before a justice of the peace. The appellant appeared and demurred to the complaint, which demurrer was overruled, but as the circuit court did not on appeal pass upon the demurrer, the action of the justice of the peace presents no question for our decision as to the sufficiency of the complaint. The appellant then answered, there was no such corporation. There was judgment for the plaintiff, and an appeal by the appellant to the circuit court. In the circuit court, William M. Blakey, assignee in bankruptcy of the Mount Vernon Masonic Hall Company, was substituted as plaintiff. The appellant filed an additional answer, to the effect that by the articles of association the capital stock of such company was fixed at twenty thousand dollars, and that only thirteen thousand dollars of stock had been subscribed. To this answer a demurrer was sustained, and the appellant excepted. There was a trial by the court, and a finding for the appellee, and, over a motion for a new trial, judgment on the finding. The appellant has assigned for error the following: 1. In overruling the demurrer to the complaint. 2. In sustaining the demurrer to the additional paragraph of the answer, and in refusing to carry such demurrer back. to the complaint and sustain it thereto. 3. In overruling the motion for a new trial. Nelson v. Blakey, Assignee. The first assignment of error presents no question for our decision. The justice of the peace overruled the demurrer to the complaint, and appellant excepted; but this ruling of the justice cannot be assigned for error. The appellant, having appealed to the circuit court, should have required that court to pass upon the demurrer, and if this had been done, then such ruling could have been assigned for error.. But the second assignment of error presents for our decision the sufficiency of the complaint. The principal question discussed by counsel is also raised by the third assignment of error, as the only evidence received on the trial was the articles of the association. The action is based upon the appellant's subscription to the capital stock of the company. The articles of association signed by the appellant, including his subscription of stock, were very clearly mere preliminary articles, contemplating a future perfection of the organization as a corporation. In the language of this court, in The Indianapolis Furnace and Mining Company v. Herkimer, 46 Ind. 142, "the defendant's contract did not purport to be with an existing corporation, but with one to be brought into existence in the future. The averment in the complaint that the plaintiff was, at the time the subscription was made, an existing corporation, cannot change the nature and legal effect of the defendant's contract. That contract was, in legal effect, that the defendant would take and pay for the stock subscribed for, in case the organization should be perfected and the corporation brought into legal existence, and not otherwise. Such preliminary subscriptions seem to enure to the benefit of the corporation when formed. Heaston v. The Cincinnati, etc., R. R. Co., supra. But unless the subsequent steps, necessary to bring into existence the corporation, were taken, there was no corporation to whose benefit the contract could enure, and the defendant could not be liable; and it should have been averred in the complaint that such steps had been taken. Wert v. The Crawfordsville, etc., Turnpike Co., 19 Ind. 242; Williams v. The Franklin Township Academical Associ Nelson v. Blakey, Assignee. ation, 26 Ind. 310. In such case, the estoppel growing out of a contract with a party as an existing corporation does not apply. In the case last cited, the court say: 'This rule of estoppel does not apply to a suit brought on a subscription made with a view to the organization of a corporation, and as preliminary thereto, where other acts are required by the law as a condition precedent to the exercise of corporate powers.' The principal question pressed upon our consideration is, whether the organization of the corporation was perfected. The corporation was attempted to be organized under “an act for the incorporation of companies for the purpose of building and maintaining buildings to be used or occupied in whole or in part for Masonic meetings, purposes, or in any way for the accommodation or convenience of Masonic bodies or lodges," approved March 11th, 1867. 3 Ind. Stat. 143. The first and second sections of said act are as follows: "Sec. 1. Be it enacted by the General Assembly of the State of Indiana, that whenever three or more persons may desire to form a company for the purpose of building and maintaining buildings, to be used or occupied in whole or in part for Masonic meetings or purposes, or in any way for the use, accommodation or convenience of Masonic bodies or lodges, they shall make, sign and acknowledge, before some officer capable to take the acknowledgment of deeds, a certificate in writing, which shall state the corporate name adopted by the company, the objects of its formation, the amount of the capital stock, the number of directors, and their names, who shall manage the affairs of such company for the first year, and the name of the town, city or county in which the same is to be located, and shall file the same in the office of the recorder of such county, which shall be placed on record, and a duplicate thereof in the office of the Secretary of State. "Sec. 2. When the certificate shall have been filed as aforesaid, the persons who shall have signed and acknowledged the same, and their successors, shall be a body politic |