sary that action should be taken speedily | verted to their own use. In the American to leave time for a corporate meeting of and English Encyclopedia of Law, (volstockholders." This decision, we think, ume 20, p. 272,) it is said: "When the diwell and properly defines the rule. A rectors or officers of a corporation are stockholder or shareholder is bound to mismanaging the business, and jeopardizseek redress by application to the direct-ing the rights of the stockholders and credors or the corporation itself, before ap-itors, the court may appoint a receiver, plying to a court of equity, when that is feasible, and will afford to him an adequate remedy; and he can only apply to a court of equity in the first instance when an emergency exists for so doing, and it is made to appear that an application to the directors or the corporation would be impracticable. We think that we may very properly enlarge on this doctrine by saying that when relief by injunction will afford a proper remedy, by staying the illegal acts of the corporate officers until relief can be had for supposed wrongs through an application to the directors or managing body, or to the corporation, through the means provided by the constitution and laws of the corporation, the court will not wrest the management of the corporate affairs from its legally-constituted officers, and turn its property, and the management of its affairs, over to a receiver. But in this the officers in charge of the affairs of the corporation, and who are charged with gross acts of maladministration of its affairs, are nonresidents of the state. They are charged with already taking $750,000 of its funds from its treasury, and depositing them in an insolvent bank outside of the state, controlled by them, and using the same for their own benefit, giving no security for its payment or use; that the only security for the money held by the officers of the local branches existing in the several states is the guaranty of this insolvent bank. Money is constantly being paid to the officers of these local branches, and coming into the treasury of the corporation. To preserve the usefulness of, and perpetuate the beneficence of, the corporation, and preserve the interests of the shareholders, the business must be continued, the dues collected, and the beneficiaries paid; and it is manifest that any relief that could be obtained by means of an injunction would not be an adequate remedy, or meet the emergency existing, while a receiver, if one be appointed, would supersede the officers; shareholders could pay the money; it would be secure; and the business conducted until a remedy could be had through the organization itself, by the displacement of incompetent or dishonest officials, and filling their places by competent and honest ones, and requiring the officers of local branches to give other and responsible surety. The showing in the complaint presents the case where the officers charged with maladministration are in a position to take from the corporation daily funds of the corporation, and during the delay necessary to the meeting of the managing board or shareholders, and before a displacement of the alleged dishonest officials through the process provided by the laws of the corporation could be had, many thousand dollars more might come into their hands, or be taken from the treasury by them, and squandered or con

upon the application of a stockholder. " See authorities cited in support of the text. In Pike Co. v. Hammons, 129 Ind. 368, 27 N. E. Rep. 487, the action was by the stockholders of a gravel road company against the officers of the corporation to compel an accounting, and to obtain the appointment of a receiver. The court held the action would lie, and that no application for relief to the directors or corporation was necessary before bringing the action. It was held in that case that the court had the power to appoint a receiver under the seventh clause of section 1222, Rev. St. 1881, providing that a receiver may be appointed “in such other cases as may be provided by law, or when, in the discretion of the court, or the judge thereof in vacation, it may be necessary to secure ample justice to the parties.' The court said: "Indeed, it was a case eminently proper for the exercise of such power. Those who own the majority of the stock in the corporation, and were able, by reason of that fact, to control the road, seem to have been derelict in the matter of repairs; thus endangering the rights of the other interested parties, and rendering the property nonproductive. Under these circumstances, it was the duty of the court, when asked to do so, to take such steps as would secure to the minority stockholders their rights in the property; and we know of no means by which this could be accomplished, except by the appointment of a receiver." In the same case the court says, "By their complaint the appellees sought nothing further than an accounting, and the appointment of a receiver, and they were not entitled to more than they sought;" the court holding that under the issues joined on the complaint it was error to order a sale of the road of the corporation. The relief sought in that case differs but little from that sought in this, or obtainable in this. The result in this action must be an accounting by the officers for the money received by them, belonging to the corporation, and the paying of it over to the receiver, and the appointment of a receiver; and the decision is in harmony with, and supports, the views we have herein announced, as to the rights of parties to the appointment of receivers under our statute. The appellees had a right to have the funds protected and preserved, and applied to their proper use, and the corporation perpetuated. The complaint states a good cause for the appointment of a receiver, and the presumption is that the proof made under it fully sustained the action of the court in the appointment of a receiver. There are some minor questions discussed, which we have considered, and in which there is no error, and we deem it unnecessary to discuss them. The conclusion we have reached leads to an affirmance of the judg ment.

END OF VOLUME 33

INDEX.

ABATEMENT AND REVIVAL.
Plea in abatement, see "Pleading," 7, 8.
Action pending in another state.

1. Where an insurance company and its creditor both reside in New York, where the debt was contracted, the pendency, in another state, of an attachment suit against the creditor, which was commenced by garnishing the company in the foreign state, is no defense to an action on the debt in New York, in the absence of an appearance by him in the attachment suit or personal service of process on him in the foreign state-Douglass v. Phenix Ins. Co. of Brooklyn, (N. Y. App.) 33 N. E. 938. Death of party-Substitution.

2. An affidavit on which is based the order of revival of a suit in the name of a personal representative, showing where decedent died, that plaintiff was appointed executrix, the will admitted to probate, and letters testamentary granted to plaintiff, is not controverted by an affidavit by defendant, denying that he has any information or knowledge sufficient to form a belief as to the facts in the affidavit for the motion. 17 N. Y. S. 24, affirmed.-Simmons v. Craig, (N. Y. App.) 33 N. E. 76.

8. An action was commenced in 1879 against the trustees of an insurance company. In 1882 one of the defendants died, and in 1883 letters testamentary were issued to his executor. In 1891 plaintiff moved to sever the action, and to revive the same against his executor. Held, that such motion was properly granted, in that, if the action be considered an action at law, no mere lapse of time would absolutely defeat au application for a continuation of such action in the name of the representative of the deceased party, and, if it be treated as an equitable action, the 10-years limitation applied. 18 N. Y. S. 662, affirmed. — Mason v. Sanford, (N. Y. App.) 33 N. E. 546.

4. It was further ground for sustaining the motion that the action was an equitable one, and that it could not be determined from the pleadings that the relief sought could be obtained in an action at law, since the court would not assume that fact, and for that reason hold that the motion should have been denied on the ground of the lapse of six years. 18 N. Y. S. 662, affirmed.-Mason v. Sanford, (N. Y. App.) 33 N. E. 546.

Action prematurely brought.

5. A plea in abatement is the proper mode of raising the question that an action on a note is prematurely brought, when such fact does not appear on the face of the note; but, when there is coupled with the plea matters which show that it can only be sustained by proof of facts necessitating a reformation of the instrument, the pleading will be insufficient, unless it contains a prayer for reformation.-Scott v. Norris, (Ind. App.) 33 N. E. 227.

Indictment.

ABORTION.

1. A count of the indictment, alleging that defendant did use "a certain instrument, the name of which, and a more particular description of which, are to said jurors unknown," is sufficient. Commonwealth v. Thompson, (Mass.) 33 N. E. 1111. Evidence.

of deceased to testify to certain changes in the 2. It was not error to permit the mother latter's appearance, and that they indicated to her that the daughter was pregnant; especially where the objection was not to the statement of opinion, but to the evidence generally. -Commonwealth v. Thompson, (Mass.) 33 N. E. 1111.

the dying declarations of deceased, it is prop3. Where the mother is called to testify to er to permit her to state that the latter said at the time that she was dying.-Commonwealth v. Thompson, (Mass.) 33 Ň. É. 1111.

Accident.

Insurance, see "Insurance," 23.

ACCORD AND SATISFACTION. See, also,, "Compromise;" "Payment;" "Re lease and Discharge."

Accepting check offered in payment.

Plaintiff sent a bill of $670 to defendant for medical services, and defendant, while not disputing the services, objected to the amount, and declined to pay the bill rendered, but sent a check for $400, stating that it was to be in full satisfaction of plaintiff's claim. retained the check, but sent another bill for the Plaintiff of the check as part payment. same amount, on which he credited the amount Defendant at on condition that it should be received in full once notified plaintiff that he had sent the check payment of his bill, and that plaintiff must either keep it on that condition, or immediately return it. Held, that the debt, which was unliquidated, was satisfied by the retention of the check, since its acceptance involved the acceptance of the condition also. 16 N. Y. S. 158, reversed.-Fuller v. Kemp, (N. Y. App.) 33 N. E. 1034.

Accounting.

Between partners, see "Partnership," 1-6.
By executors and administrators, see "Execu-
tors and Administrators," 6, 7.

Acknowledgment.

Defective, notice to grantee, see "Vendor and
Purchaser," 8, 9.

In what counties notary may take, see "Notary
Public."

Acquisition.

ACTION.

6. The fact that, if reformation were decreed, the plea in abatement would be useless, as the note itself would show that it was not of homestead, see "Homestead,” 1. due, furnishes no objection to this manner of pleading, on the ground that it would compel a party to cut up his defenses; for, as the decree would furnish the proof necessary to make out the plea in abatement, the entire case would be tried and disposed of on the ne pleading.— Scott v. Norris, (Ind. App.) 33 N. E. 227. v.33N.E.-72

See, also, "Abatement and Revival;" "Limita tion of Actions;" "Parties;" "Pleading," "Practice in Civil Cases;" "Trial."

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