adequate, and he cannot proceed against the consolidated corporation in equity.46

In New York, under the merger statute, a creditor of the absorbed company must first recover a judgment against the absorbed company, before it can reach the property of such absorbed company in the hands of the company into which it is merged, by a suit in equity to reach a trust fund.47

§ 4806. Right to follow assets into hands of consolidated company. That the creditors of the consolidating corporations may fol low their assets into the hands of the consolidated corporation can admit of no question; and they cannot be deprived of this right by the consolidation agreement or by the statute authorizing the consolidation, unless the authority to consolidate was given before they became creditors.48 If authority to consolidate was conferred when the contract was entered into, the creditor must be assumed to have contracted with reference to the existence of the power, and he may be restricted to a remedy against the consolidated corporation.49 If an action is brought against a company and a judgment against it is obtained after the consolidation, execution may be levied upon the property of the constituent company in the possession of the consolidated company, in some jurisdictions.50

A creditor of a consolidating corporation may waive his right to follow its assets into the hands of the consolidated corporation, or he may lose the right by laches in asserting it, or by the intervention of rights of bona fide purchasers or incumbrancers for value. If a creditor of one of the consolidating corporations sues and recovers a judgment against the consolidated corporation on his claim, he cannot afterwards enforce his judgment against property of the consolidating corporation conveyed to bona fide purchasers before recovery of the judgment.51

46 Arbuckle v. Illinois Midland Ry. Co., 81 Ill. 429; United New Jersey Railroad & Canal Co. v. Hoppock, 28 N. J. Eq. 261.

47 See Irvine v. New York Edison Co., 207 N. Y. 425, Ann. Cas. 1914 C 441, 101 N. E. 358, aff'g 143 N. Y. App. Div. 344, 128 N. Y. Supp. 297.

48 Market St. Ry. Co. v. Hellman, 109 Cal. 571, 42 Pac. 225; Chicago, R. I. & P. R. Co. v. Moffitt, 75 Ill. 524; New Bedford R. Co. v. Old Colony R. Co., 120 Mass. 397.

In case of consolidation, the liabilities of the consolidating companies cannot be transferred to the consolidated company without the consent of the creditors. Market St. Ry. Co. v. Hellman, 109 Cal. 571, 42 Pac. 225.

49 Indianola R. Co. v. Fryer, 56 Tex. 609.

50 Atlantic Coast Line R. Co. v. Cone, 53 Fla. 1017, 43 So. 514.

51 McMahan v. Morrison, 16 Ind. 172, 79 Am. Dec. 418.

§ 4807. Pleading. In suing a consolidated corporation, at least where the constituent corporations are domestic ones, it seems that it is sufficient to merely allege that the defendant is a consolidation of other named corporations without going into details showing the incorporation.52 Thus, in a suit to hold a consolidated company liable on a judgment against one of the constituent companies, it is held sufficient to allege generally a consolidation between the company which is the judgment debtor and the other constituent company.53 But it is improper to charge the transaction, where with a constituent company, as having been by and with the consolidated company,54 and where the cause of action is one originally accruing against a constituent company, it must be shown against which constituent company it accrued and aver such facts as will subject the consolidated company to liability thereon.55 A statute providing that an allegation of corporate capacity shall be taken as true, unless specifically denied, does not apply to an allegation of consolidation.56

§ 4808. Joinder of old and new corporation as defendants. Ordinarily, an action on a claim against a constituent company cannot join as defendants both the constituent company and the consolidated company.57 However, it has been held that an action instituted naming a corporation and the purchaser of its property which assumed its debts, as defendants, may be proper where all of the property of the predecessor corporation has been transferred to such successor, the original cause of action having been against the predecessor corporation.58

52 Jackson Consol. Traction Co. v. Jackson Circuit Judge, 155 Mich. 522, 119 N. W. 915, 15 Det. L. N. 1081.

Averments of the steps taken to effect the consolidation are unnecessary. Collins v. Chicago, St. P. & F. du L. R. Co., 14 Wis. 492.

The complaint need not contain the articles of consolidation. Cleveland, C., C. & St. L. Ry. Co. v. Prewitt, 134 Ind. 557, 33 N. E. 367.

If the consolidation was under the statutes of another state, it is sufficient to set out such statutes and allege that their provisions have been complied with. Rothschild v. Rio Grande Western Ry. Co., 63 Hun (N. Y.) 632, 18 N. Y. Supp. 548.

53 Green v. Michigan United Rys. Co., 159 Mich. 58, 123 N. W, 607, following Jackson Consol. Traction Co. v. Jackson Circuit Judge, 155 Mich. 522, 119 N. W. 915.

54 Marquette, H. & O. R. Co. v. Langton, 32 Mich. 250, 251.

55 Indianapolis, C. & L. R. Co. v. Jones, 29 Ind. 465, 95 Am. Dec. 654; Marquette, H. & O. R. Co. v. Langton, 32 Mich. 251; Langhorne v. Richmond Ry. Co., 91 Va. 369, 22 S. E. 159.

56 Koons v. Chicago & N. W. Ry. Co., 23 Iowa 493.

57 Langhorne v. Richmond Ry. Co., 91 Va. 369, 22 S. E. 159.

58 Citizens' St. R. Co. v. Shepherd, 30 Ind. App. 193, 65 N. E. 765.

§ 4809. Actions by consolidated or purchasing company. The consolidated company may itself sue on claims which originally belonged to the constituent companies but which have become its property by reason of the consolidation. If the name of the constituent corporation is necessary in an action by a consolidated company, as against a special objection urging and showing such necessity, the defect may be cured by amendment and is not available on a motion to dismiss.59 So, in some cases, where there is merely a purchase, the purchasing corporation may sue on claims originally held by the. selling corporation.60 In an action by a consolidated company, on a claim belonging to one of the constituent companies, the complaint should show the consolidation according to law.61

§ 4810. Actions by constituent or selling company. Ordinarily, after consolidation, a constituent company cannot sue on claims held by it which pass to the consolidated corporation.62 But where the consolidation agreement provided that the choses in action of the constituent companies should be realized on and the proceeds paid over to the consolidated company, and there was no transfer or assignment of such choses in action to the new company, a constituent company may sue on one of its choses in action in its own name.63 A company which has transferred all its property and franchises except the franchise to be a corporation is nevertheless, under the New York statutes, authorized to sue to restrain the transferee corporation from using its name, although it has voluntarily dissolved, where there are outstanding debts on which it is still liable.64

§ 4811. Effect of consolidation or merger while action is pending. A consolidation or merger pending an action by or against one of the combining companies does not kill or destroy the cause of action,

59 Southern Steel Co. v. Hopkins, 157 Ala. 175, 20 L. R. A. (N. S.) 848, 113 Am. St. Rep. 20, 16 Ann. Cas. 690, 47 So. 274.

60 By a purchase of the assets of one corporation by another, the pur chasing corporation may acquire such interest in a suit pending, instituted by the selling corporation, that it may prosecute the same in its own name. St. Francis Elec. Light Co. v. Elec. Supply Co., 69 Ark. 174, 61 S. W.

912.

61 University of Vermont v. Baxter's Estate, 43 Vt. 645, 42 Vt. 99.

62 While this is undoubtedly the rule, the contrary seems to be held in Barrett v. Stoddard County (Mo. App.), 183 S. W. 644.

63 Eastfield S. S. Co., Ltd. v. MeKeon, 201 Fed. 465, rev'g on other grounds 186 Fed. 357.

64 Metropolitan Telephone & Telegraph Co. v. Metropolitan Telephone & Telegraph Co., 156 N. Y. App. Div. 577, 141 N. Y. Supp. 598.

but in all cases a recovery may be had by or against either the old company or the new company.65 The general rule is that actions. by or against a corporation do not abate by reason of its consolidation with another company,66 but generally in such cases the proper procedure is to substitute the consolidated company as plaintiff or defendant.67 Especially is there no abatement if the consolidation. statute continues all the liabilities of the constituent companies or expressly provides that pending actions shall not abate.68 Where, by statute, consolidation does not abate pending actions, a consolidated corporation brought in as a defendant cannot contend that no recovery can be had against it because the action was not commenced against it within the time fixed by the contract, where it was com

menced against the constituent company within such time and the consolidation not effected until after such time.69

Pending actions or proceedings by or against the consolidating corporations generally may be revived by or against the new corporation, or it may be substituted as a party.70 The only ground of controversy is whether the proceedings must continue by or against the original company, as some cases hold,71 or whether the consoli