it has frequently been claimed that a voluntary unincorporated association has not legal capacity to receive a donation, although a valid bequest to such an association could be made to take effect indirectly; 1 but however this may be, it is of no consequence, in the settlement of the affairs of a joint-stock company, as affecting the rights of the associates entitled to an interest therein, that the legal title to land belonging to the company has been taken in the name of one or more of the associates, or in a third person, the members of the company are still entitled to their beneficial interest in such land.2

There

§ 363. Consolidation of different companies. is no legal impediment to the union or consolidation of two or more joint-stock companies, and a consolidation can be accomplished in any manner agreed upon between the stockholders of the different companies. The individual members remain liable for the debts of their respective companies, contracted prior to the consolidation, but no formal transfer of the joint property is necessary, provided the members agree that it shall belong to the new association, when formed. Where there is a clause in the articles of association, forbidding the union or consolidation of a given company with any other, without the consent of a majority of the stockholders, but there is a

1 Green v. Allen, 5 Humph. (Tenn.) 168, 170; White v. Howard, 46 N. Y. (1 Sick.) 144; Cahill v. Bigger, 8 B. Monr. (Ky.) 211; Smith v. Nelson, 18 Vt. 511, 546; Gibson v. McCall, 1 Rich. 174.

2 Barker v. White, 58 N. Y. 204; Butterfield v. Beardsley, 28 Mich. 412.

3 Boone on Cor., § 185; Black v. Del. &c. Canal Co., 24 N. J. Eq. 455.

4 Haslett v. Witherspoon, 1 Strabh. (S. C.) Eq. 209; Go dari v.

Pratt, 16 Pick. 412; Witmer v. Schlatter, 2 Rawle, 359.

5 Wait's Act. & Def., Vol. 4, p. 164, § 7; Amer. Silk Works v. Solman, (6 N. Y. Sup. (T. & C. 352) s. c. 4 Hu), 135.

clause providing for an amendment of the articles of association by a concurrent vote of two-thirds of the executive committee and a majority of the trustees, the authority to amend the articles gives no power to take from the stockholders the power to prevent the consolidation of the company with any other, for they reserved this power for their own protection and such authority is only intended for such amendments as are pertinent to the objects of the business which the company was organized to carry on.1 Where a consolidation is sought for, a dissenting shareholder need not surrender his interest in the property at an estimated valuation; he can have the value of his interest ascertained by a sale." But a dissenting stockholder is not entitled to have a sale at the commencement of the litigation; his right is to have it sold when he has recovered judgment, and where the amount of dissenting stock is small in proportion to the amount of stock whose owners acquiesce in the agreement for consolidation, the court will have the consolidated company give bond for the satisfaction of the judgment for the value of the property transferred to it belonging to the. dissenting shareholder.3

In all ac

§ 364. Parties to actions by and against. tions at law by and against an unincorporated mining assoation, as it occupies the same legal status as an ordinary partnership, the suit should be brought in the name of all the members, or in the name of one or more, for the use

1 Boone on Cor., § 186; Black v. Del. &c. Co., 24 N. J. Eq. 455.

2 All stockholders must consent to consolidation and those dissenting cannot be compelled. Black v. Del. &c. Canal Co., supra; Kean v. Johnson, 40 N. J. Eq. 401.

3 Black v. Del. &c. Co., supra.

of all,1 and no action can be maintained by or against the association in the character of a society possessing corporate rights, i. e., in the name of any one or more of the officers of the association, unless it is organized under some statute, whereby such authority is given. In actions by or against companies organized under statute, however, it is not necessary that the individuals comprising the company should be made parties, except such as are authorized by the statute to represent the company, but the action is not properly brought against a greater or less number than the statute provides for, and under a statute authorizing the president and secretary to represent the company, an action against the president, secretary and treasurer is not properly instituted. The complaint, in actions against companies organized under statute, should show that the company is a joint-stock company or association, consisting of the requisite number of members, but the names of the shareholders need not be stated and the

5

1 Pipe v. Bateman, 1 Iowa, 369; Birmingham v. Gallagher, 42 Mass. 190; Cockburn v. Thompson, 16 Ves. 321; Gorman v. Russell, 14 Cal. 531. 2 Sta. & N. Y. Laws, 1881, Ch. 599; Statutes different States; Pipe v. Bateman, 1 Iowa, 369; Birmingham v. Gallagher, 112 Mass. 190; Cockburn v. Thompson, 16 Ves. 321; Gorman v. Russell, 14 Cal. 531.

3 Alery v. Brown, 51 How. (N. Y.) 92; Wait's Act & Def., Vol. IV., p. 168.

4 Ante, idem. Schmidt v. Gunther, 5 Daly (N. Y.), 452. "Plaintiff and defendant were shareholders in a joint-stock mining company. Money being required to work the mine, T., who was also a shareholder, applied to a bank for an advance of £500, which they consented to make on the security of the joint promissory note of the plaintiff, defendant and T. The note was given and the money advanced, and applied to the purposes of the mine. The plaintiff, having been compelled to pay more than his share of the note, sued the defendant for contribution: Held, that this was not a partnership transaction, and therefore that the action was maintainable." Sedgwick v. Daniel, 2 H. & N. 319; M. M

D. 263.

5 Lindley on Part., 49 and note.

existence of the company, under the statute, need not be alleged or proved, when the court takes cognizance of the laws by which it was created.1

§ 365. Same - Actions between company and members. In the absence of provisions in the by-laws or articles of association, regulating the remedies of members as between themselves and the company, the general law of partnership applies, and a member cannot in general maintain an action against the company on a contract between himself and the company for services rendered in the conduct of the business of the company, or maintain any action against the company or a member that would involve an examination of the partnership accounts.5 But the member of a joint-stock company, like the member of an ordinary partnership, may recover from the company, for expenses or services rendered previous to his having become a member of the company, and in the case of companies organized under statute, it is no valid objection to an action against the company, in the manner prescribed by statute, that the plaintiffs are members of the company.7 If the articles of association or by-laws provide that certain officers can prosecute, in an action at law, all assessments upon the shares of stock, an action therefor can be maintained in the name of such officers of the company

1 Ante, idem.

2 Bullard v. Kinney, 10 Cal. 60; Wait's Act. & Def., Vol. 4, p. 167. 3 Ante, idem. Wilson v. Curgan, 15 Mees. & W. 532; Perring v. Hane,

4 Bing. 28; Holmes v. Higgins, 1 B. & C. 74.

4 Coal Co. v. Fry, 4 Phil. (Penn.) 129.

5 Wilson v. Curzo, 15 Mees. & W. 532.

6 Lucas v. Beach, 1 Man. & G. 417; Wait's Act. & Def., Vol. IV., p. 168.

Lindley on Part. 49; Waterbury v. Merchants &c. Co., 50 Barb. (N. Y.) 157; Fargo v. McVicker, 55 Barb. 437; Hinkle v. Blethew, 78 Me. 221; Olery v. Brown, 51 How. (N. Y.) 92.

in the manner prescribed by statute, and it would not be a good defense that in actions between themselves, the rule does not differ from that which prevails between the members of an ordinary parnership.1

§ 366. Judgments and executions against. — Under the statute permitting actions to be brought against jointstock companies by proceedings against certain officers of the company, a judgment would bind only the joint property of the association and not the individual property of the members so sued, for they are sued in their representative capacity, as officers of the company and not as individuals. Before the president and members of the company could be held individually liable on a judgment against the company, the execution against the company must have failed to secure a satisfaction of the debt. But the liability of the individual members of a joint-stock company and judgment against the company, after execution returned unsatisfied, is the same as that of partners, and consists in the original demand against the company, and not the judgment against it. The complaint, therefore, should allege a subsisting cause of action against the company on the original demand.1

1 Lindley on Part., supra.

But a minority of the members could not procure a receiver and sale of the property without a clear case of fraud, or imposition by the majority. Hinkle v. Blethew, 78 Me. 221. Where the president of a joint-stock company surreptitiously transferred the property, members are entitled to an accounting. Boothe v. Dodge (1901), 69 N. Y. Su. 673.

2 National Bank of Schuylerville v. Van Derwerker, 74 N. Y. 234; Allen v. Clarke, 65 Barb. 563; Lindley Part., Vol. II, § 1095.

3 Ante, idem. Robbins v. Wells, 18 Abb. Pr. 191; s. c. 26 How. Pr. 15; 1 Robt. 666; Kingsland v. Braisted, 2 Lans. 17; Allen v. Clarke, supra; Witherhead v. Allen, 3 Keyes, 562.

4 Witherhead v. Allen, supra; Miller v. White, 50 N. Y. 137; Moore v. Brink, 4 Hun, 402; s. c. 6 N. Y. 22; 59 Barb. 434.