the whole of the supposed descent from indefinite ancestors is but fictitious; the law may as well suppose the requisite ancestor as to suppose the requisite descent."

By some oversight not very explicable, the statute 11 and 12, Wm. III., although adopted by several of the states, was never adopted in this until the last revision; and in consequence of this omission it would seem that we, with institutions and policy diametrically opposed to the old feudal doctrine of alienism, have been all the time subject to the harsh operation of an arbitrary rule established centuries ago, under circumstances exactly the reverse of those in which we have been placed, and this too without the advantage we have possessed as respects most other maxims of by-gone days-that of having had them gradually mollified and conformed to the notions and necessities of modern times by the liberal expositions of an enlightened judiciary, which all the mean time has occupied the benches of the English courts. Under these circumstances, and in the absence of any authorities in our own courts, and in fact any in the courts of England since the case of Collingwood v. Pace, I should have been inclined to struggle hard before I yielded to the conclusion that this old and practically exploded rule of the English law had remained in full force and operation in this state; and if this question were now open I should search with diligence and anxiety for some evidence to the contrary. But the late case of Jackson v. Green, in our supreme court, the opinion in which has been adopted and printed as the opinion of the court in this case, and the still later case of Levy v. McCartee, in the supreme court of the United States, reported 6 Pet. 102, are authorities directly to this point; and although they perhaps are not absolutely controlling upon our decision, yet the very high character of the two courts, and the full examination they have given the question, constrain me to admit what otherwise I should not without doubt and reluctance, that the rule of the common law laid down in Collingwood v. Pace, which disables a son of an alien, though himself a subject, from inheriting the estate of his uncle, continued to be the law of this state (notwithstanding the statute of 11 and 12 Wm. III.) up to and at the time of the descent cast in the present case.

But the point upon which the counsel for the plaintiff has seemed mainly to rely is, that in this case the father having died before the uncle, the inheritance was cast by virtue of the fifth canon of our statute of 1786, regulating descents, directly upon the plaintiff, he being at the time of the uncle's decease a citizen

AM. DEC. VOL. XXIV-14

capable of taking real estate. After a careful examination of this statute, 1 vol. of R. S. of 1813, p. 52, I can find nothing to justify this conclusion. The object of this part of the statute was confined to changing the common law rules of descent, and it was not designed, so far as I discover, to affect any ability or disability of inheriting. In this respect the personal or consanguineous disabilities remained as at common law. The object of the fifth canon in particular was to sustain the doctrine of inheritance per stirpes by collaterals; and it carries this prineiple further than it is carried in the case of lineal descent, and further than was carried in the civil law, from which the principle of it was copied. See Jackson v. Thurman, 6 Johns. 322. It tends, consequently, if any effect is to be given to it in this respect, to a closer application of the common law rule relative to the intervention of an alien ancestor, inasmuch as it makes the vinculum between the ancestor last possessed and the relation who claims, more distinct and important.

So, if at common law there might be a doubt whether the descent from uncle to nephew (the father being dead) was not immediate, this canon seems to take away that doubt by declaring that such child or children shall inherit such share "as the parent would have inherited if living," thus interposing the father as a stirps and an indispensable standard by which the extent or quantity of the child's inheritance shall be measured. And the argument pressed by the plaintiff's counsel, that these words are used only to designate the quantum of the child's estate, and are not intended to affect the question of the mediateness or immediateness of the descent, if sound, has unfortunately no other effect than to bring the question directly back to the common law rule that governs it, and the disability to inherit through an alien father recurs with its original force. The reply attempted, that the statute establishes the relation between the uncle and the nephew, and therefore gives the estate directly from the one to the other, without regard to the alien disability of the intervening ancestor, proves too much, as by the same reasoning the inheritance must go to the nephew, though he were himself an alien, for there are no express words in the statute to exclude aliens from taking, and we might as easily infer that it cured the alien disability to receive as that of being the medium through which the estate was transmitted. Indeed, I can find nothing in these canons to justify an opinion that they changed or in any way affect the rule of the common law,

which otherwise would govern the present case, and therefore am for affirming the judgment of the supreme court.

It being the unanimous opinion of the court that the judgment of the supreme court ought to be affirmed, it was accordingly affirmed.

AS TO THE COMPETENCY OF ALIENS TO TAKE and hold land, see Apthorp v. Backus, 1 Am. Dec. 26, and Elmendorff v. Carmichael, 14 Id. 86, and note. That an alien could not, at common law, take or transmit land by descent, is & doctrine for which the principal case is cited as authority in People v. Conklin, 2 Hill, 71; Orser v. Hoag, 3 Id. 84; Redpath v. Rich, 3 Sandf. 81; McGre gor v. Comstock, 3 N. Y. 414; McCarthy v. Marsh, 5 Id. 274. It is cited, also, in Banks v. Walker, 3 Barb. Ch. 446, to the point that the statute of 11 and 12 Wm. III., c. 6, was not adopted in New York. In Lynch v. Clarke, 1 Sandf. Ch 637, it is referred to as to the rule applicable where descent is interrupts by alien blood.

NON-JOINDER OF PARTIES.-Where it is not apparent from a bill itself that necessary parties are omitted, it can be taken advantage of only by plea or answer, showing who are the necessary parties, and making the objection of a want of parties in a plain and explicit manner.

DEFENDANTS CAN DEMUR FOR NON-JOINDER OF PARTIES only when it is apparent from the bill itself that there are other persons who ought to have been made parties.

THE OBJECTION OF MULTIFARIOUSNESS CAN NOT BE SUSTAINED where the complainants have similar interests, and seek the same redress for a common injury. WHERE SEVERAL PERSONS HAVE A COMMON INTEREST, arising out of the same transaction, although their interest is not joint, even the defendant may sometimes insist that they shall all be made parties, that he may be subjected to the trouble and expense of but one litigation. THAT A DISCOVERY MAY OCCASION THE FORFEITURE OF A CORPORATE CHARTER, is not sufficient to support a general demurrer to the whole bill against the directors, even if it would have authorized a demurrer to the discovery of particular facts.

DIRECTORS ARE PERSONALLY LIABLE, as trustees, for loss occasioned by will. ful abuse of their trust, or by the misapplication of the funds of a moneyed or other joint-stock corporation.

IDEM.-Directors are equally liable, if they suffer the corporate funds or property to be lost or wasted by gross negligence and inattention to the duties of their trust.

CHANCERY HAS JURISDICTION, IN THE ABSENCE OF STATUTE, to compel directors to make satisfaction for any loss arising from a fraudulent breach of trust or the willful neglect of a known duty.

JOINT STOCK CORPORATIONS ARE MERE PARTNERSHIPS, except in form. A BILL CAN NOT BE SUSTAINED, unless it is made to conform to the law a it existed at the time the suit was commenced.

IDEM.-A bill filed prior to the revised statutes, by the stockholders against the directors of an incorporated company for fraud and mismanagement, should make the corporation party either plaintiff or defendant. DEMURRER ORE TENUS was allowed upon payment by the defendants of the costs of the demurrer; but the complainants were permitted to amend. BILL filed by certain stockholders of the New York Coal Company against the directors, charging them with improper conduct. The bill alleged that the company was incorporated with a capital of two hundred thousand dollars, and was restricted by its charter from carrying on any banking business, and was limited solely to the business of exploring for, digging, and vending coal. The opening of the books of the company and the election of certain directors and officers were next alleged. The bill then proceeds to set out the discontinuance of the coal business by the directors, and the investment in stock of various other corporations for the purpose of speculation, in violation of the known duty of the directors and for their personal benefit; charging that these investments amounted to nearly two million dollars, and entailed a loss to the company of not less than one hundred and fifty thousand dollars. It was further charged that the amount of debts owing by the company during a part of the time, when these stock speculations were going on, exceeded fifteen times the amount of the capital paid in. The president and secretary were also made defendants; the bill charging that the books and papers of the company were in their possession. A discovery was prayed, together with general relief.

One of the defendants demurred generally to the bill for want of equity; and the others put in a general and special demurrer, that the complainants were owners of their stock in severalty, and had no joint interest therein; and that the complainants owning but one hundred and sixty shares of the four thousand shares of the capital stock, the owners of the other shares should have been made parties.

C. G. Troup and G. F. Tallman, for the defendants. The corporation should have been made a party: 6 Vin. Abr. 304, tit. Corporations; Rex v. Clark, 1 Say. 226; Brooke Abr., tit. Corporation, pl. 24; Cooper's Eq. Pl. 174; Alsager v. Rowley, 6 Ves. jun. 749; Burroughs v. Elton, 11 Id. 35; Doran v. Simpson, 4 Id. 665; 3 Meriv. 463. All the stockholders should have been parties, or a part should have filed a bill on behalf of themselves, and all others who might elect to come in under the decree: Lay v. Thomas, 2 Ves. sen. 312; 2 Madd. Ch. Pr.