Arkansas true Democrat., 1859-07-06

ii'Vi '' h. Oo., ErTW 70 Caster.
 This was an action of assumpsit to reco- yer of the defendant in error, the amount ot certain assessments due upon his shares in the capital stock of the plaintiffs, by act of the legislature, which was declared to be public law The plaintiffs were in corporated for the purpose of constructing railroad, with the powers and privileges usually granted for such purpose. (Act of lS54-5, ?. 900. The charter reoui.ed that payment of the shares of the capital stock of the company should be made in such sums and at such periods as should be fixed by the board of directors, provided that sixty days notice be given of each call. to be published in certain newspapers.- The declaration contained four counts.- The court sustained demurrer to the first. second and third, whereupon the plaintiff dismissed, as to the fourth count. and brought error
 The Court held:
 lst. It Is unnecessary to aver in the de- | cIaration that the plaintiff is a corporation duly constituted and authorized bv law to sue Tn Its corporate name. The rule is, that corporations may sue in their corpo- rate names, and if their legal existence be | questioned It must be done bv plea.
 2d. The act incorporating the plaintiff was declared to he public law, of which courts are bound to take judicial notice.
 3). Where the charter of a corporation reqli ed sixty days notice 10 stockhol CTS of an assessment, and in which to make l payment of the assessment on their e,ork; the notice thus prescribed is a condition l precedent to the plaintiffs right of action a suit therefore 10 recover the amount of the assessment if instituted before, would be prematurely brought, and could not be maintained.
 4th. Where the charter of corporation requires that sixty days notice, after an as sessment has been made, by publication in certain newspapers, for the purpose of mo- tifying stockholders of the time of making said payments, the order of publication is merely directory, and sixty days actual per- sonol notice will be deemed sufficient.
 Judgment of court below reversed, and case remanded for further hearing.
 The Mississippi, Ouachita, r..o. :,
 and Red river R. R. Co.,, Ea,n' Aanor .,s('d 70 Edward Cross. ''''
 This was an action of assumpsit to reco- yer the calls due upon ten shares (of Sl00 each, of the capital stock of the company subscribed by the defendant The defen- dant pleaded the general issue and produced evidence to show that the plaintiffs had v- plated the charter of the record by chang ing the route of the road after he had sub scribed to the stock and in manner con trary to their charter. The jury returned verdict in favor of the defendant. The plaintiff moved for new trial on the ground that the verdict was contrary to law and evidence The court overruled the motion, plaintiffs excepted, set out the evidence, and brought error.
 | The Court held:
 lst. The charter is the law of the con tract between corporation and a subscriber to it's capital stock, and corporation has no right to depart from the laws or vio- late the contract of the subscriber.
 Fl. Any material departure from the points designated in the charter for the To- cation of the road Is a violation of the charter and an invasion of the contract, and for such abuse of the charter the fran chlse of the corporation may be seized up- on quo lCarranto, unless the legislature has waived the right of the State to seize the franchise, by acts legaizing the violation of the charter
 Sd. \ corporation may be dissolved and its franchise lost by nonuser or neglect, but the default must be iudicially determined in a suit established for the purpose; and 1t may also be dissolved for a breach of trust, but n the latter case it must be first called upon to answer.
 f. No advantage can be taken of any nonotser or mtSHser on the part of a corpo- , ration 5y any dyendant jn qny collateral action.
 ). The only evidence competent to prove the forfeiture of charter is the judgment of a court directly on the roint, and no inferior evidence can be admitted for the purpose, unless 1t is otherwise directed bv the legislature in express terms.
 Q. \ plea or answer to the suit of a cor porahon Sho~ing facts upon which in di- rect proceeding, the corporate powers might be declared at an end, is not sufficient. It ] must show that they have ceased. !. As general rule in a suit by rail- road company or other corporation against } a subscriber for assessments upon his stock, he Is not permitted to show by way of de- fence to the action, that the corporation has, by mlsuser or nonuser violated or fail el to comply with the provisions of its charter.
 s. The charter being the law of the subscribers contract, if the directors under. take to make an unwarranted departure from the provisions of the charter in the location of the road, or in the appropria. tion of the funds of the company, the stoekholder has his remedy by injunction not to enioin the collection of calls due upon his stock but to restrain the corpo ration from the particular violation ol abuse of its charter complained of. ?. It IS not competent for plaintiff 1T error to prove (his subscription being ge l neral and unconditional declarations made by an agent of a corporation in his speeches
 etc, as to the location of the road, unles, [ the substance of such declarations is incor. porated in the contract of subscription. and t a compliance herewith by the corporation
 made condition precedent to the payment
 of assessments upon the stock
 10. A court does not err in excluding
 evidence introduced by parties in relation
 to the violation of the provisions of the |, charter of corporation of road in the To-
 cation of said road.
 : Judgment reverted and the ease remand
 ed with instructions to grant the defendant
 in error a new trial, etc, etc. s JUDGE EDMoNDs ON SPIRIrUAL1sM.- : Judge Edmonds is publishing series O : letters on his favorite topic in the New n York Tribune. He states that the spirit, h first manifested themselves to him througl
 the sense of hearing. He had heard the !, voices of dear friends lo,,r. :, 1,,4 d