New-York tribune., 1867-09-07
SUPREME COURT-CHANBERs.

MOTION FOR TIE APPOINTMENT OF a RL-
CEIVER DENIED. ro
In re Stephen r. Wateroury sgt The MeIona.,I 'H P ~
piny, binore l. h''' Co -.
D.o,,.,n J-This suit was instituted by
AZ tr,,ry against the Merchants Umon Express
1 y,,sive i've or Managing Committee The object u
the snit is 10 obtain Judgment or decree Oh ts Court
sun tIe Compauy and for the appointment OF re-
t wind mn It's affairs. The Company was organ
}ed in the year 1886 joint stock ASSOCIATION accord
iIeu III ,n Ia va of This state with capital of SIS 100000,
40 INTO shares Of 500 each The stock all sub
Serbed for BY its articles OF ASSOCIATION tHe dai91h OF
the company was to be 50 years ana the inuiaul u %
tendans Ross and seven other persons were named III
t6e same articles as the Executive Committee pnd
tv tbe first year. The same individuals ana
1t aoi nnmberN of other persons were constituted
ahe first Board OF Trustees Having completed It's equip
ment the Company commenced business IN october ast
and il is now in vigorous operation ON about 1900 nles
OF railroad including all the main nes OF transit fr9n
the seaboard and beyond the Mississippi River lts
principal competitors are the American ana the Onted
States Express Companies, ana the evidence Deote me
tends strongly show that the volume OF ls business Is
canal TO that OF both those companies combined Ine
two other Express Companies here named are lsttut0nS
of an older date and they together with the Adams tx
nress Comnany whose operations confined mainly to
the seaboard, had mOnopoliDed the express business w
the country FOR many y9rs pp mat thew had divided
territory railroad lines 20 that the rates ana chRs &
of any OF them might not compete WIN enel VI '"o
Waterbury claims to have been an original subscriber
for so shares OF stock in the Mercants Io d aS
and subsequently 10 have purchased 100 shres anu a
shareholder or partner IN the enterprise nc dshs IA %
complaint for dissolution and % gp0d h
snred the complaint IN June last denying and refut
ing upon the Oaths of officers ana EAetuteM M it de-
All the allegations upon which the rlght 10 le eLc uo
manded is based. Issue was thus JOnSd' out teo @ m
no trial hearing OF that Issue dno ON or
ceeding now before is an inter0cutOIy hotuh Vn -
,Gre afdavs for receiver to take ehaEe oi & we d
ness and affairs of the Company lOr te I Oet' m ,u eu
IN have h condition examined by an account 10 DC tho
under the direction OF the Court with view 10 an ult ~
mate determination OF the question T,et IN az ~ Sn ear ~
allowed 10 90 on or must be arrested IN he hst year VI
ia operatons It'll quite too plain TO require serious ar
gument that such motion cannot be granted WIN tho
Issue vet untred and undetermined, unless on the ahda
wits now before me IL appears beyond the IosslOlHty ot
doubt that in the iina decision oil tne cadsc ,o
anpears from facts and evidence entirely uahsWeIaDc'
ID would he judicial interference OF the most unM wa,
rantable kind now to take from company Ol suCh FV
and varied concerns the conduct ana lnaIaReAch' Va '
own affairs. , - .,o,,,r ,ros,ons n will
be useful 10 consider briefly the nature ana esl @
fer of these Joint stock Associations They are ~
framed under and with reference to the statute
laws on subject The first act was Pac&u pas & M III, in 5i
further act passed AT the session OF ls6 autnoraeu
these companies to hold rea G ne - sttes il viii he
found that ioint stock companies possess Iic &
qualities attributes of cOip9aon& & VIZ o coIIective
,pe to Wit tbe name OF their President or lreao-
urer C2) Their nrSSpef, or Of StocS dirns in no
Tpspcct from shares and stock certificates IN COZ
vcmcv or the sale or transfer OF his interest s not
dissolution of the Company. 90 lhey nave PtLPoiti,ai
of Cornorafions 5) They take and hold real ana
VI % D0 cste in collective capacity and in perpetual
succession. These are all atDuiSS oa
we Shall find that Corporations have no o'ci
except the technical one oi co" M s no W thp hand
simple partnerships have none oi the attributes OF lu
tiles here mentioned mere names niU , V and natrc
of things, it is plain that IN respect 10 the ~
sence OF common seal n'olSS nolgS S,, 'H''T J'hn thc
other and vastly more material respects "a -
are like corporations, although thcy are uot @ ~
i'm The case of the General Banking act o is ne NOId
corporation is not used IN that act yei me Ht
to he corporatous the fullest aud most exact sese
As TO pcrsoual and diyiduhl laihty,l may ado ti.t
this il an incident both Of partnerships ana cooralo
uniform and nyariabc IN the one casc subject chtlIGy
TO the legislative Will in the oiheE Na' thc1; aIo we
tTue relations of "a shareholder IN one OF these e'
sociations and by what rules ana ahh.osi's
are his nights v{h dS bodv q TBleh Gd bSone
Tncc institutions are OF such recent oisu among u-ald
have arisen under laws OF such recent cha, e' hW we
without Judicial prece1sn'sM 81 III c@,toyrr. @ Ike te
nresen one We must follow mainly the ahIi"Eer hn"iuu
Uy G ' % "f te derived from the law of simple partner
shin say mainly because u may 10. ", ~ ~ - 49, i i
thV @ M in a case Of actual insolvency The share
holder IN view Of his contingent Ii" Snl.N '', -
gncker remedy 20 wind up aud c",e the concern tHAh
f9te laws Of this utc allow in tAc case % corpora
tiou other than those organized for banking purposes
CSce EdmOnd's I'd. Of statute, Vol ?, p 4siJ. Bc
tbis as n may, 10 is nevertheless true that
the situation and relations OF hiaIchohtt
Vrry exactly like those OF stOckhOdcru corporation
lis interest is represented by certificate OF stock,
which hc sell aud transfer by single ndoI sceht
lie has coded the mAuag, nent 20 Board oi Trustees,
or some other authority named III tht hllcta Hshcu ~
himself and the same articles prescribe thc duration Cf
tbc company He has right OF management or control
except that which he exercises originally or ltluuchuy
IN the choice Of the managers, ana even leh MS kHl Is
NOT a in the case of partnership equal T. that Of every
other partner, but j. equal only 20 the amount Of stock
the ASSOCIATION together ana s the law OF its exist
epce as the charter j. the law OF corporation.
Guided by these relations and by the nature of these
companies. which nave the eApi3 sanction OF our Avs
am Of opinion that the rules Wlnc govern slmpc com
mon law partnerships afford but iecblnal0g, II any
at all, 70 govern s IN thc controversy NLeh c pun
has instituted with the association 10 which he belongs,
and in which holds less than one thousandth part Of
The stock have sad that ptcedehts h2e not Jet arisen
nm this country. These companies have However existed
for time in England aud my conclusion seems 10 bo
fortified by authority ~ nal ,' ii i.i'Nsay,
in his Treatise Partnership, NOR u there any
Jcrdble shares are or can pe dl'soNed py vt
on the happening OF those events which
are sufficient TO Dissolve induce Court Of Equity To
dissolve, an ordinary paftcishP ana again ne sAys:
ut Notwithstanding the Oiteniepcaled assertion tai, at
common law, unlncorpOred cohipan!co WIN transferable
shares are mere partnerships ouSnt hot 10 ne HicItu
that what is sufficient to dissolve tho latter Is sufficient
dissolve the former There Is great, and win re-
spect to the present question: very atiitl ulcr1oe
between the contract entered INTO between the members
of ordinary partnership ana the contract entered into
between the shareholders OF an uhhcofoiaed company
with transferable shares" fully concur In these views,
and they are decisive against 'e pan IA te present.
controversy not 3niy now but apPltenuy III al its
stages, unless indeed he can claim the relief lie
asks for, on tho very simple and intellgible
ground OF the insolvency OF the company.
And here 1t will be proper 10 dispose Of that point In the
case n indeed IL be saId 10 be involved in the at ALL
The insolvency OF the company IL somewhat darky and
indstincty suggested In the complaint but do not nd
any distinct ayerment Of the fact Whatever Is averred
on that subject is very distinctly denied In the answer
and the affirmative of the question must be maintained
and proved by the plaintiff Any suggestion state
ent Of this kind ought not TO have been made In the
sence of all facts 10 uphold It, On looking al all the a
davis before this motion, mud very satisfactory
VindcatOn OF the financial situation OF the Company.
The subscribed capital OF the Company originally
S5O0OO0 From :3OOOOO0 10 s40oOOO have been called
and paid in and for this the Company Is able to show
very large real and personal estate and equipment for
the transaction OF It's immense business together with the
good will which Ii has acquired The Company has cash
surplus OF several hundred thousand dollars owes
debts The officers and Executive Committee state,
under oath, and apparently upon reasonable grounds,
Company, with that Of the good win which II enjoys,
very much exceeds the entire sum paid in by the stock