The New Orleans crescent. [volume] (New Orleans, La.) 1866-1869, 1869-01-06

emitted to anything, are entitled only to be paid
out Of the half OF the proceeds of said bonds; bat
thai, out Of the other half, which belongs to the
general funds they have no right Of any kind \
whatever; and that, consequently. the order from
| the court. eI joining absolutely and without dis
| tnction the treasurer from disp posing OF funds in
his hands, resulting from the sale of eyee bonds,
should be amended as to apply to only half the
proceeds of said sale. and that petitioner has a
right to be paid out of the other half
Plaintiffs and defendant have been ordered,
therefore, to show cause why the injunction should
not be amended.
Judge Duvigneaud Of the Second District Court
| and Judge Cooley Of the sixth yesterday Joined
| in with s1d made themselves parties TO Judge
Theards Intervention. There is no doubt that all
| the CT or district judges will make themselves
parties, j Judge Leaumont himself included.
Now, who is 10 try the case And who is TO
pay the costs The first question is hardly to
be answered except by the Judges themselves;
but the second is answered as easily rolling of
| log-the Siate-the poor old Pelican State OF
Louisiana.
FIRST DISTRICT CoURT.-Henry Young, colored,
was found guilty of stealing pair of shoes be-
longing to N. Miller, and was remanded for
sentence: The verdict. in the handwriting of Mr.
NJ. p. Flynn, was Gily.n But that makes no
difference, as this is the second trial, and the
dsIky has already pleaded guilty.
John Davis was found guilty Of larceny and
remanded for sentence.
The trial OF VIM. Bevins, charged with killing
police officer Gebhsrdt whilst the latter had him
in charge as prisoner, is fixed for trial for the
| l4th inst
FOURTH DISTRICT CoURT.--In the case of Henry
Bezou commissioner, aud al, vs.. J. Lorber, A. II.
| D'Meza and al, Judge Theard delivered yester
| day an important. able and most lucid opinion,
which we regret from its length, that we cannot
| insert in full in our columns. The only question
| to be decided on was one of Jurisdiction, as per
agreement OF parties.
After quoting the section of the bankrupt act
| bearing upon the question, the judge says:
The first observation TO be made on this pro-
| vision of the bankrupt law, is that il is new
feature introduced for the trst time in the bank
| rupt act of 1867, apparently borrowed from the
| provisions Of the British statute Of "a and %,
| Vick C. 1874. 1t is hence provision in which the
court can obtain little aid from the construction
Of it by other tribunals.
Its object is evidently two fold for it provides
| lst For voluntary bankruptcy upon the petition
of any Cficer duly authorized at legal meeting
of the members OF the corporation called for that
purpose. and,
ID, Involuntary bankruptcy upon the applica
ton of creditor or creditors.
But suppose that neither OF the above fOrmali
ties have been resorted to, Is the Stale, when con-
viz ced that a corporation has not fulfilled the
| conditions for which il was created, to remain in
| active, and permit company whose usefulness
has ceased to continue its operations 70 the detr
| ment OF the public
This IL is presumed, will hardly be insisted on,
but If 1t were, there s graver and more import
| ant question behind which must also be decided,
ana II is this Has the United states the power
to destroy the franchises OF corporation or joint
stock company?
Let Us admit, for the sake of argument that the
bankrupt law euptrsedes tie insolvent laws of
the State, and that il applied equally TO indvId-
usls and corporations, yet it can not and probably
will DOT, be denied that 1t was not intended and
does exclusively apply to persons and corporations
IN esse and not to defunct corporations.
Continues the Judge: The error Of the doctrine
of The learned counsel who argued the plea to the
jur sdiction consists in supposing that the pro-
eedings in this court were an nsolvent proceed
| ing, when il was proceeding for the forfeiture
of the charter that is for the dissolution OF the
| c. mpany, by virtue of the la creating it,
Ills wss sn act in which the national govern
| ment coud not interfere since it had not created
the company authorized its existence, and
hence did not, and could not determine the period
| of its duration.
| thas long been mooted question: IL the United
States, under he powers granted by the Constltu
/ ton. could crea'e corporations, and the question
is not yet finally decided: but be this as IL may,
| it is certain that no express power having been
conferred on the United States for that purpose,
il con only he elaimHd We, ineifsnt1 s n sa'sS
| Wheat SIG: Osborne VS.. the Bank of the United
| States. Wheat 1871 But as it will not be pre-
tended that the United States, 10 the exercise OF
any power, either expressed or implied, could Gre
| ate an insurance company in Louisiana, and mas
much a. the conditions OF the existence OF this in
stituiion depended On tSe terms imposed on IL by
the sovereign creating 1t, to wit: the state OF
ouisans, the United States could not forfeit its
| chslter
| Admitting, therefore, the omnipotence Of the
bankrupt law, so strongly insisted on. il is diff.
| cult to perceive its application IN the present
case. wEeIe there is no longer any corporatlon on
! which they cen act, and where it is no longer
pos sIble to carry its provisions into effect.
1 The case, as il now stands, and supposing the
corp0rs ton still in existence. exhibits an insol-
| vent company, unable to meet its engagements
| ard fulfill the objects Of public utility for which
il was created, and hence, by virtue OF the very
| law to which II owes its being liable to be dis
| solved. Will it be pretended that the State, or
creditor, has right to provoke the forfeiture of
its charter because Congress has passed general
| bankrupt law
More than year has already elapsed since the
forfeiture of the charter, and no effort has been
| made either previous 10 that event, or since. to
have the corporation declared bankrupt. IL is
| obvious that the defendants have no right to pro.
woke proceedings in bankruptcy.
| |. Because they are debtors not creditors, and
| 2. Became though once members OF the cor.
poraton, they are so no longer, since Il has been
dissolved.
tive provisions of the statute of Louisiana, 1T is
| now settled that it is tacit condition OF grant
of Incorporation that the grantees shall act up TO
the design for which they were Incorporated
| ard that when il is judiciay determined that II
has failed in this essential condition OF the act OF
| incorporation the charter will be forfeited.
But inasmuch as the United States bankrupt
law does not. and could not, contain any proyt
siops in relation TO the forfeiture Of the charters
| of corporations over which Congress- has no con
| troll this singular anomaly would follow, that the
State, which has granted the act OF incorporation,
possessed the right TO dissolve the corporation.
but was not authorized to declare the effect of the
dissolution, nor the manner in which the property
| should be preserved and distributed and the oc-
| curfence Of such al event, because OF the exist
| ence of the bankrupt law.
Such professions are clearly unfounded, because
the charter Of private corporation is an executed
contract and the State in granting 1t had right TO
| impose such conditions as il thought proper on
the grantee, who, in accepting them, was bound
| by his stipulaiioDs.
| But Louisiana has declared that the charter
should he forfeited 10 a like the present, and
has conferred on the court the power TO appoint
acompetent person 10 iiquidate its affairs. The
acceptance Of the charter on these conditions
rendered them obligatory on all the members OF
| the cOrporation and more especially on the de-