The North-Carolina standard., 1845-04-09
:. VOLUME xI.-NUMBER 544
TERMS 3 PElk ANNUM,
80 PAYABLE E INaDVAWCE. .a

Dy the regular course OIL law, tQal ought also 70
be satisfied in like manner and hence, the par.
tcular case mentioned the act is not to be look.
ed on one to which peculiar remedy is,an.
nexed, but, rather, as example Of the mode in
which payment of the debts. Of this corporations
was 10 be obtained, that is, by making its proper
y including, Of course. all its property liable to
execution for its debts, the property of corpora.
Ions generally is liable on execution for their debte
In other words, it was moi intended TO discrimin.
ate b. tween rail road corporations and olhcr cor.
poralons TO their duty of paying debts, or tho
modes of coercing them TO the performance Of
their duty 1t was admitted by the Counsel for
the State that this proposition must be received as
true, in respect to all the other property Of tho
company. except the land on which the line Of
roads run, such as the cars, locomotives supply
of wood lumber and iron not laid down, and land
purchased for depots; but it was insisted that it
was different with respect the land forming the
road itself The exemption OF that was claimed
upon the ground that, by the sale Of it, the cor,
poration itself ceased, that 5nstanti the land
reverted 10 the former owner, and, consequently,
the purchaser got nothing; and so, as the law
does nothing in vain, and especially when attend
ed with such destructive consequences, it was in.
ferred that there could be ne such sale Bat the
position is not true, that the corporation is dssolV.
cd blythe sale Of part Of the road, nor, indeed,
Immediately upon the sale of the whole road, as
| ii seems to US. It may because of forfeiture II
insisted on by the State and without any prose.
cution. it may, in process of time amount to for.
feiture. But. by The express provision of tho
Statute, it requires disuse Of the corporate prvi.
leges and powers for two years 10 amount. of it.
self, TO a forfeiture Now although it be general.
| ly true, that upon the expiration Of corporation
or its dissolltion,< unless otherwise provided by
Statute, the real estate, undsposed of Will revert
to the donor or original owner; yet, that is only
true as to such estate as remains in the corpora.
tion at the moment of its dissolution, and docs not
apply TO such as had been dvesled out of it either
by its act or by the act of law. In this case,
therefore, the sale was not vain but the purchaser
got the estate in the land which belongs 10 the
company. If that was not SO by the common
law, it would, we think, necessarily be so upon
the construction Of our Statute, which gives the
writ of feri facias against the company; for, in.
stead of arguing that there should be no sale, be-
cause the purchaser gets nothing, the argument IS
the other way, that the purchaser does get the
estate, because the. sale OF it is authorized and,
ftherefore, even upon subsequent dissolution Of
the corporation the land would not revert until by
lapse of time the charter would have expired.
But, really, there is no more ground for exempt.
ing the line of road than the other property Of the
company :: for its operations the beneficial use OF
the road either to the company or the public, is as
effectually suspended by the sale Of all lis other
effects as by that. Of the road itself, Indeed i
must be supposed under our lazy, that its person.
al effects have actually been sold, or are purpose.
ly withheld and concealed by the company; be-
cause The Sheriff cannot rightfnIy sell land while
there are personal chaules If so, then the credi.
tor is reduced to the last resort namely on the
land for bis debts, and for tile. reasons already
given, it must go rather than he should be defraud.
ed Of his debts. .a
The question has thus far been considered ia
reference to The conflicting claims OF the creditor
and the cooperation to the protection of the law.
The counsel for the State, however, interposes, rs
further and DISTINCT objection 10 The sale of the
road, the righl of the'pnblic TO the use of It as
high way. and the necessity that the company
should retain the road to enable it to perform its
duty 10 the public by keeping it up as highway
This position rests on the assumption that because
the road is a highway it is ez ~ termini not lia
BILE to. execution. Now, we cannot assent'to that
proposition in the extent here laid down. Its
correctness depends on the sense in which The
ternl' highway" is usrd, and the Legislative
intention as to the Iiability Of the properly Of
rail road companies for their debts The, Court
said in The case Of the Raleigh & Castor r. r.
vs. Davis, 2,Dev e Bat.451 that a rail roads
Il highway; but it does not follow, and cetainly
was not intended, that it should be understood to
be common public highway, on which all citi-
Zens were free TO pass, and which, from cessity,
could not be the subject of execution because
lueFC 10 Ho lI BECAUSE INC
easement is eacl4sipely in the public In that
respect there is an essential difference between the
one kind of.roadS and the other Rail roads, al.
though pu6ties 5uris IN spme, respects are tho
subjects of private property and i is in the latter
character that lhey are liable To be- Sold unless
forbidden, BY the Bpgislnture not the franchise,
bu. the. estate of the corporation in the land,
which is a distinct thing from the franchise. In
the sense, that the land and other things taken for s
construction are taken for a public use, inaemuch
as it is mode of opening avenues OF comlnuni-
cation between different parts of the State, and
with other States, and. therefore, thatit was pro.
per exercise of the right Of eminent domain, wo
think the; expression. was correctly used. We
have no doube, toor that ii is so in some respects
as 70 the modes of enforcing its due reparation
and Furnishing its obstruction. The latter is cx-
pfessIy made an HIdictabfe offence, rs is shown by
the case now under consideration The State
may compei the eomPanyby mGndagsHs to mako.
calls on4he corporators to the full amount oftheir
subscriptions, andlay ont the whole capital and
the profits in constructing the road and kefping il
in repair, if adeqgnte and necessary 10 that end.
TIE case 0f5tAs Eerer1p q Wye Raitt6ay COM
pany, Q b s. Aid 646. So, while the company
is in possessionand using the road it must be m,
dictable for noD.repar, upon the sttled prinei.i
pie that they are bound TO repair by their engage
ment to sthe public in accepting their charter
and occupying the road But that il is q high.
way in the sense that it is not the subject Of exc
cution, is quite different thing. Thai depends
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