144; Adair v. New River Co., 11 Ves. 444; Good v. Blewitt, 13 Id. 397; Moffat v. Farquarharson, 2 Brown Ch. Cas. 339; Brown v. Ricketts, 3 Johns. Ch. 553; Davoue v. Fanning, 4 Id. 109; Cockburn v. Thompson, 16 Id. 326. The bill should have stated the excuse for not making all the stockholders parties: Mosely, 85; Bowyer v. Covert, 1 Vern. 95; Mitf. Pl. 134; 1 Montague on Pl. 65; Prec. in Ch. 592. The complainants should have set forth their rights clearly, and stated time, place, and circumstance. Uncertainty in the bill may be objected to on demurrer: Cooper Eq. Pl. 181; East India Co. v. Henchman, 1 Ves. jun. 287; 3 Meriv. 170, 173; Cathcart v. Lewis, 3 Bro. Ch. Cas. 516; Elmendorf v. De Lancey, 1 Hopk. 556; City of London v. Levey, 8 Ves. 400. This court has no jurisdiction, it being a case of fraudulent misapplication of the funds: 2 Madd. 61; 3 Bl. Com. 431; King v. Watson, 2 T. R. 199; Attorney-general v. Earl of Clarendon, 17 Ves. 491; Act Incorporating the Farmers' Fire Ins. and Loan Co., Laws of 1822, p. 52; Laws of 1825, p. 448; 2 Rev. Stat., pt. 3, c. 8, tit. 4.

G. Griffin, contra. A stockholder who is aggrieved may for himself alone proceed in chancery against the directors: Ogden v. Kip, 6 Johns. Ch. 160; Attorney-general v. Utica Ins. Co., 2 Id. 389; The Charitable Corporation v. Sutton, 3 Atk. 400. Chancery has jurisdiction over corporations to compel them to account: 1 Madd. Ch. 93; Adley v. Whitstable, 17 Ves. 315; 1 Meriv. 107; Attorney-general v. Governors of the Foundling Hospital, 2 Ves. jun. 44; Caffrey v. Darby, 6 Id. 488; Fellows v. Fellows, 4 Cow. 710 [15 Am. Dec. 412]. Parties having the same interest involved in the issue, or one connected interest centering in the point in issue, may join: Brinkerhof v. Brown, 7 Johns. Ch. 217; 2 Madd. Ch. Pr. 234; 2 Anst. 469, 477. A demurrer, for want of proper parties, must show affirmatively who ought to be the parties: Wiser v. Blachly, 1 Johns. Ch. 537.

The CHANCELLOR. Before I proceed to examine the merits of this case, it may be proper to refer to the causes assigned as special grounds of demurrer. And first, it is said there are other stockholders who ought to be made parties. Where it is not apparent from the 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: 2 Paige, 280; 1 Monro's Kent, 107; 1 A. K. Marsh. 112; 1 Hogan, 70. The defendants can demur only when it is apparent from the bill it

self that there are other persons who ought to have been made parties. And the demurrer should show who are the proper parties. It is true the capital stock of the corporation is, by the charter, to consist of four thousand shares, and the complainants own but one hundred and sixty. But it also appears from the act of incorporation that the defendants who were directors must also have been stockholders. And from aught that ap

pears to the contrary, they may now be the owners of all the residue of the stock subscribed.

The objection for multifariousness can not be sustained. All of the complainants are cestuis que trust, having similar interests in every respect, and arising out of the same trust. They are seeking precisely the same redress against their trustees, and for the same acts, by which they allege they have received a similar and common injury. There is therefore no good reason for requiring them to file separate and distinct bills. It is a favorite object of this court to prevent a multiplicity of suits. And 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 only subjected to the trouble and expense of one litigation. Upon the principle of the decision of this court in Brinckerhoff v. Brown, 6 Johns. Ch. 139, the complainants were authorized, if not required, to join in this suit.

The objection that a discovery may subject the company to a forfeiture of its charter, is not sufficient to support this general demurrer to the whole bill, both as to the discovery and relief, even if it would have authorized a demurrer to the discovery of particular facts. Under the provisions of the revised statutes, the defendants may be compelled to make a discovery in certain cases, although it may subject the corporation to a forfeiture of its corporate rights: 2 Rev. Stat. 465, sec. 52.

If the allegations in this bill are true, there is no doubt that the directors of this company were guilty of a most palpable violation of their duty, by engaging in this gambling speculation in stocks, which was wholly unauthorized by their charter, and which the bill alleges was carried on to subserve their own individual interests and purposes. I have no hesitation in declaring it as the law of this state, that the directors of a moneyed or other joint stock corporation, who willfully abuse their trust, or misapply the funds of the company, by which a loss is sustained, are personally liable as trustees to make good that loss. And they 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. Independent of the provisions of the revised statutes, which were passed after the filing of this bill, this court had jurisdiction, so far as the individual rights of the corporators were concerned, to call the directors to account; and to compel them to make satisfaction for any loss arising from a fraudulent breach of trust, or the willful neglect of a known duty. To this extent Chancellor Kent, in the case of The Attorney-general v. The Utica Ins. Co., 2 Johns. Ch. 389, admitted the court had jurisdiction, although he doubted the general powers of this court over the corporation itself to prevent an abuse of its corporate privileges. Until very recently but few incorporated companies, in which individuals had any direct pecuniary interest, existed in England, except corporations for charitable purposes. And this court would very reluctantly interfere with the concerns of mere municipal corporations, where a sufficient remedy is afforded by mandamus or quo warranto, or by an indictment against the officers of the corporation, for any abuse of their powers, by which the public has sustained an injury. But since the introduction of joint stock corporations, which are mere partnerships, except in form, the principles which were formerly applied to charitable corporations in England may be very appropriately extended to such companies here. The directors are the trustees or managing partners, and the stockholders are the cestuis que trust, and have a joint interest in all the property and effects of the corporation: See Wood's Inst., b. 1, c. 8, p. 110; 11 Co. 98, b. And no injury the stockholders may sustain by a fraudulent breach of trust, can, upon the general principles of equity, be suffered to pass without a remedy. In the language of Lord Hardwicke, in a similar case, "I will never determine that a court of equity can not lay hold of every such breach of trust. I will never determine that frauds of this kind are out of the reach of courts of law or equity; for an intolerable grievance would follow from such a determination:" 2 Atk. 406. The demurrers on the record are therefore not well taken, and should be overruled.

The defendants have, however, assigned as causes of demurrer, ore tenus, that it is not alleged in the bill that the corporation, by its officers, refused to sue, or that the defendants are the present directors, having the control of the corporation; and that therefore the suit should have been in the name of the corporation. That even if a sufficient excuse is shown by the bill,

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for bringing the suit in the name of the stockholders, the corporation should be before the court as a party defendant. I think at least one of these objections is well taken, and that the corporation should be before the court, either as complainant or as a defendant.

Generally, where there has been a waste or misapplication of the corporate funds by the officers or agents of the company, a suit to compel them to account for such waste or misapplication should be in the name of the corporation. But as this court never permits a wrong to go unredressed merely for the sake of form, if it appeared that the directors of the corporation refused to prosecute by collusion with those who had made themselves answerable by their negligence or fraud, or if the corporation was still under the control of those who must be made the defendants in the suit, the stockholders, who are the real parties in interest, would be permitted to file a bill in their own names, making the corporation a party defendant. And if the stockholders were so numerous as to render it impossible or very inconvenient to bring them all before the court, a part might file a bill in behalf of themselves and all others standing in the same situation: Hichens v. Congreve, 4 Russ. 562. Although the revised statutes have provided for cases of this kind in future, this bill can not be sustained unless it is made to conform to the law as it existed at the time the suit was commenced.

The demurrer ore tenus is therefore allowed, upon payment by the defendants of the costs of the demurrer on the record: Attorney-general v. Brown, 1 Swans. 288; Durdant v. Redman, 1 Vern. 78. But the complainants are to be at liberty to amend, as they may be advised.

OFFICERS OF CORPORATIONS ARE LIABLE for refusing to permit transfer of stock: Morgan v. Bank of N. A., 11 Am. Dec. 575.

TRUSTEES OF CORPORATIONS WHEN PERSONALLY LIABLE on note signed as trustee: McClure v. Bennett, 12 Am. Dec. 223.

DIRECTORS OF A CORPORATION ARE LIABLE for a fraudulent breach of trust: Smith v. Rathbun, 66 Barb. 405; Greaves v. Gouge, 52 How. Pr. 60; S. C., Abb. Pr. (N. S.) 381; S. C., 49 Id. 82, where Robinson v. Smith is cited, among other cases, showing when an individual may sue the directors without seeking the aid of the corporation, or making it a defendant, or uniting with him, as plaintiffs, others similarly situated: Excelsior Petroleum Co. v. Lacey, 63 N. Y. 426; Cross v. Sackett, 6 Abb. 265; S. C., 16 How. Pr. 70; Robertson v. Bullions, 9 Barb. 132; Cumberland Coal Co. v. Sherman, 30 Id. 571; Ramsay v. Gould, 57 Id. 406; Ramsey v. Erie R. R. Co., 8 Abb. (N. S.) 184; and may be restrained in equity from a misapplication of the corporate funds: Howe v. Duel, 43 Barb. 508.

Cited in East N. Y. & Jamaica R. R. Co. v. Elmore, 5 Hun, as one of a series of cases settling the principle that a treasurer of a corporation can not extinguish his indebtedness thereto by purchasing stock thereof at a low figure, and charging it to the corporation at par; in Hand v. Atlantic Nat. Bank, 55 How. Pr. 232; N. Y. & N. Haven R. R. Co. v. Schuyler, 17 N. Y. 596; S. C., 7 Abb. 59; Smith v. N. Y. Consolidated Stage Co., 18 Id. 422; Wells v. Jewett, 11 How. Pr. 247; Gardiner v. Pollard, 10 Bosw. 676, in regard to the necessity of making the corporation a party where the suit is by the stockholders against the directors for loss by negligence; in Gray v. N. Y. & Va. S. S. Co., 3 Hun, 391; S. C., 5 N. Y. S. C. (T. & C.) 229; Luling v. Atlantic Mut. F. Ins. Co., 30 How. Pr. 75; Butts v. Wood, 38 Barb. 189, that the usual and more approved form in action against a corporation and its directors is for one or more of the stockholders to sue in behalf of the others.

The rule in regard to permitting a demurrer ore tenus on paying the costs of the record demurrer, is followed in Forbes v. Whitlock, 3 Edw. 447; Boyd v. Hoyt, 5 Paige, 71; and as to the practice of allowing demurrers ore tenus, in Van Clief v. Sickels, 2 Id. 398; Schenck v. Ellingwood, 3 Id. 177.

HILLS V. MILLER.

[3 PAIGE CH. 254.]

SEPARATE DEEDS OR INSTRUMENTS EXECUTED AT THE SAME TIME and in relation to the same subject-matter, may be taken together and construed as one instrument.

EASEMENTS ARE ATTACHED TO THE ESTATE and not to the person of the owner of the dominant tenement, and they follow the estate into the hands of an assignee.

SERVITUDES ARE A CHARGE UPON THE ESTATE OR PROPERTY of the servient tenement, and follow it into the hands of any person to whom such tenement or any part thereof is subsequently conveyed.

THE DIVISION OF THE DOMINANT ESTATE does not destroy the easement;

and the owner or assignee of any portion of that estate may claim the right so far as it is applicable to his part, provided the right can be enjoyed as to the separate parcels, without any additional charge or burden to the proprietor of the servient tenement.

FASEMENT RUNNING WITH THE LAND.-Where a vendor of a tract of land bounded on a street, agrees with the vendee that a certain triangular piece of land opposite shall not be built upon, and gives a bond to that effect, the vendee, after a sale of the tract to a third person, can not make arrangements with the vendor whereby the triangular piece may be built upon.

MOTION to dissolve an injunction. Bostwick, the owner of a tract of land on the west side of Hotel street, conveyed the same to Miller, at the same time entering into a bond in the penal sum of ten thousand dollars, conditioned that a certain triangular piece of land on the east side of Hotel street, opposite the tract sold to Miller, and belonging to Bostwick, should