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the jury the question of bona fides only. pel the payment of an unpaid subscripThe jury found for the defendants. The tion when the corporation is insolvent, Supreme Court reversed the decision, is held in Henry v. Vermillion f. Ashland laying down the broad rule : “Until Ruilroad Co. and Stockho'ders, 17 Ohio the stock is fully paid up, the corpora

187 (1848). tion has a right to refuse to receive new In Mann v. Pentz, 3 N. Y. 422 members in place of the original adven- (1850), the doctrine of a trust fund turer.” This case was recognised and mentioned by Judge Story, and so ably followed in Graff v. Pittsburgh f. Stou

urged in the principal case, was recogbenvile Railroad Co.,: 7 Casey 489

nised. In Runkins v. Elliott, 16 N. Y. (1858).

377 (1857), the right of action for arIV. As to the right of creditors, or

rears in calls and subscriptions is said officers representing them as an assignee

to rest with the receiver. Seymour v. in bankruptcy or a receiver, to compel Sturgess, 26 N. Y. 134 (1862), alluded the payment of unpaid subscriptions to

to in the opinion, was a case of somestock. It may be premised that it is

what peculiar character. It was an acheld that the insolvency of a company

tion brought by a bond creditor to is no ground for restraining the collec

recover from a stockholder the amount tion of unpaid subscriptions or calls:

still due upon his shares, the corporaWest Chester & Philadelphia Railroad

tion having failed to meet its obligaCo. v. Thomas, 2 Phila. 344 ; Dill v.

tions. In the original bonds there was Wabush Valley Railroad Co., 21 Ill. 91,

a special agreement, “ the obligee and where the court said : “The insolvency

his assigns are to look only for payment of the company can constitute no ground

of it to the corporation, and out of its for restraining the collection of these funds and property.” The bonds were judgments [for calls). Indeed it shows not met and a new series was issued, the more urgent reason why they should

secured by a trust of the corporation be collected. It is due to the creditors

funds and property. The by-laws gave of the company that it should make the directors power to make calls to the available all its resources and faithfully

par value, provided each call should be apply the proceeds to the payment of its

made by at least five directors, and gave debts."

the power of forfeiture. The certificates In Wood v. Dummer, 3 Mason 308

expressly rendered the stock “subject (1824), STORY, J., said: “It appears

to a further payment of $35 per share."

No call had been made. ALLEN, J., to me very clear, upon general princi

said: “ The most that could be implied ples, as well as the legislative intent, that the capital stock of banks is to be

from a subscription to the capital stock, deemed a pledge or a trust fund for the

or an acceptance of a certificate of stock,

would be a promise to pay upon the repayment of the debts contracted by the bank."

quest of the promisee (the company],” Ward v. Griswoldville Manufacturing

and held, that there must be a call made Co., supra, was a bill filed by creditors

by the five directors ; without such a

call “ the defendant could not be made to compel the company to make a call for unpaid subscriptions. The bill was

liable to pay to the corporation, * * * sustained, the court holding that the

and if not to the corporation, then not discretion of the directors as to making

to any one standing in the place of the calls was merely neodal, relating to

corporation, either by assignment, sucthe time and manner of making the

cession or act and operation of law." payments.” That a creditor can com

Later, the court seemed to rest its deci.

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sion on broader ground : “ They be- the creditors of the corporation, in came stockholders by paying the amount which view, while the fact that no call fixed by law or agreed upon with the had been made by the five directors corporation, and taking certificates of might be a valid defence in an action by stock with a clause in them stat the

the company, yet a creditor would stand further payments to which the stock on a different footing, and in regard might be subjected by order of the di- to this case, which seems in conflict with rectors, thus making the title of the the authority of cases in its own state, purchaser or stockholder a conditional most lawyers would agree with Judge title under the by-laws depending on STRONG that it does not assert the the payment of the future calls, but doctrine which is generally accepted," leaving such payment optional with and at any rate there would seem to be them,"

The opinion then goes on to no doubt that an assignee in bankruptey, compare the liability to pay to a lien

who not only represents the creditors, but on the stock.

possesses the powers of the corporation, It will be seen that the court lost

so far as necessary to render available sight of what seems to be the key of its assets, could collect the amount of the subject, viz. : That subscribed capi- an unpaid sum due upon the company's tal is a trust fund for the protection of stock.

H. BUDD, JR.

Supreme Court Commission of Ohio.

WILLIAM H. GROGAN v. EMMA GARRISON. Under section two of the Dower Act (1 S. & C. 516), an estate conveyed as jointure, to be a good legal or statutory bar to dower, must be such an estate, as to certainty and kind, that the wife, on the death of her husband, may take posses. sion of, and hold in severalty, and not in common with others.

If the estate so conveyed be such as that at common law dower could be assigned by metes and bounds, then in such case the jointure, to be a legal bar to dower, should be an estate in severalty, so that the widow may enter and hold in severalty, without being compelled to resort to an action to have her jointure assigned to her by metės and bounds.

An antenuptial contract which conveys an undivided one-third part, or any other interest in common with others, in lieu of dower, is not a good statutory bar.

Whether such an estate will constitute a good equitable jointure depends on the facts and circumstances of the case, and when such contract is pleaded by way of equitable defence to an action for dower, the facts upon which it depends, and not the pleader's conclusions from the facts, must be stated.

The conveyance of an estate as jointure, of an individed one-third of a lot of land for the life of the wife, when such lot is less than one-third of the husband's lands, is primâ facie not a good equitable jointure, in the absence of facts showing that the same is fair and reasonable, or of such acts of the widow as amount to an estoppel.

The antenuptial covenant of a woman, that in case she survive her husband she will not claim dower in his estate, cannot, in an action by her for dower, operate to bar such action, either by way of release or estoppel, where such antenuptial contract does not constitute either a legal or equitable bar.

Error to the Superior Court of Cincinnati.

The defendant in error, Emma G. Garrison, formerly Emma Grogan, filed her petition for dower, stating therein that she was the widow of one William Grogan, who, during coverture, was seised of certain lands, out of which she asked an assignment of her dower as provided by law.

William H. Grogan, a minor, and the only son of the deceased, by a former marriage, and John Parker, administrator of William Grogan, were made defendants.

William H. Grogan, by his guardian, filed an amended answer, setting up as a bar to this action, an antenuptial contract, a copy of which, by order of the court, was made part of the answer. It conveyed to Mrs. Grogan a lot "for her jointure, and in full satisfaction of her whole dower."

To this the petitioner demurred, on the ground that said amended answer did not state facts sufficient to constitute a defence.

Upon the issue thus made, the case was reserved for hearing to the general term, where it was held that the matters set up as a bar were insufficient, and decreed that the petitioner was entitled to dower.

This writ was brought to reverse that judgment.

Goodman f Storer, for plaintiffs in error :

I. The antenuptial contract is a good bar under the Dower Act, section 2; 1 S. & C. 518, 519.

II. The contract under consideration is a good bar at common law. For the definition and requisites for a good jointure, see Coke's Littleton, ch. 19, 36 a. And as to what Lord Coke meant by “competent," see Washburn on Real Property 299; 1 Atkinson on Conveyancing 266; 1 Bright on Husband & Wife 434; 1 Roper on Husband & Wife 462 ; Scribner on Dower 381; Drury v. Drury, 2 Eden 39; Id. 75; Walker v. Walker, 1 Ves. Sr. 54; Tinney v. Tinney, 3 Atkyn 8; Caruthers v. Caruthers, 4 Bro. Ch. 500; Smith v. Smith, 5 Ves. Jr. 189; Dyke v. Randall, 2 De Gex, MeN. & G. 209.

III. The contract is a bar at equity: Garthshore v. Chalie, 10 Ves. Jr. 1; Walker v. Walker, 1 Ves. Sr. 54; Harvey v. Ashley, 3 Atkyn 3; Eastcourt v. Eastcourt, 1 Cox 20; Tew v. Lord Winterton, 3 Bro. Ch. 493; Simpson v. Gutteredge, 1 Mad. 609; Andrews V. Andrews, 8 Conn. 79; McArtee v. Teller, 2 Paige 511; Kennedy v. Mills, 13 Wend. 553; Gould Ex'rs v. Womack, 2 Ala. 82 ; Stilley v. Folger, 14 Ohio 610; Murphy v. Murphy, 12 Ohio St. 407; Phillips v. Phillips, 14 Id. 308.

In conclusion, we claim then:

1. That the judgment of the Superior Court, as shown in their reported opinion, was based upon mistakes of fact apparent on the record.

2. That in every particular the antenuptial contract was in strict conformity to the Act of 1824.

3. That not in England, any other of the United States, or in Ohio, has hitherto any attempt been made to set aside such an agreement made strictly in conformity to the statute of 27 Henry VIII., and the similar acts of the various states.

4. That for the meaning of the word “jointure," as used in the Act of 1824, we are remitted to the common law, and that there, adequacy or amount is never to be considered in construing the validity of a jointure.

5. That at equity an unbroken chain of decisions go to settle the law to be, that antenuptial settlements are contracts, and that a woman under no disability at the time is as much bound by her contract, and estopped to deny its force, as a man could be.

L. H. Swormstedt, for defendant in error:

I. The antenuptial agreement and facts set up in the amended answer are not sufficient to bar the defendant in error of her dower in the estate of William Grogan, deceased, because it is not a legal jointure within the letter and meaning of the statute: 1 S. & C. 518. As this statute is similar to the provisions of 27 Henry VIII., chap. 10, relating to jointures, it is subject to the constructions given that statute and similar statutes in other states, and being in derogation of a common-law right, should be construed strictly. The statute itself contemplates that a case may exist in which a conveyance can be made, and intended to be in lieu of dower, and yet fail to operate as a legal bar: Sect. 4 of the Dower Act. For a definition of "jointure," see Coke on Lit., sect. 41, note 8; 4 Kent, m. p. 56; Scribner on Dower 371, sect. 6; 1 Bright on Husband & Wife 435; 2 Scribner on Dower 384, sect. 32. The antenuptial agreement set up in bar of this action, does not, as to its time of commencement, quantity or certainty of the lands which the widow is to have, meet the requirements of the law or statute: Thomas's Coke 597. In reference to the matter of dowerment, ad ostium ecclesire, see Thomas's Coke 464; 1 Scribner on Dower 73; 1 Washburn on Real Property 223, sects 4, 5, 7; 1 Bright on Husband & Wife 367, sect. 23; 1 S. & C. 516.

II. The antenuptial agreement is no equitable bar: Stilley v. Folger, 14 Ohio 647; Murphy v. Murphy, 12 Obio St. 417; Womack v. Womack, 2 Ala. 83; Tarbell v. Tarbell, 10 Allen 278.

III. The widow is not barred of her dower by the antenuptial agreement, because the contract on its face is unfair and unreasonable, and there are no allegations in the amended answer to show the contrary, the burden of proof being on the defendant below : Miller v. Miller, 16 Ohio St. 532; Phillips v. Phillips, 14 Id. 315; 14 Ohio 647; Kline v. Kline, 57 Penna. St. 122; 64 Id. 122.

IV. This brings us to consider, whether or not the fact of the defendant in error having been of age and having signed this antenuptial agreement, estops her from setting up a claim to dower. To arrive at anything like a satisfactory conclusion on this point, we must inquire what the widow's right of dower was when this antenuptial agreement was entered into—what the widow's power over it then was? Among the essential elements of every contract, there must not only be parties competent to contract, but subject matter that has actual or potential existence for the contract to operate upon, and there must be mutuality. Viewed thus, how does this antenuptial agreement stand? What was the right or subject matter that the defendant in error released when she signed the instrument set up in bar to her present action? Judge SUTLIFF well expressed it in the case of Murphy v. Murphy, 12 Ohio St. 416; Needles v. Needles, 7 Id. 432; 7 Mass. 155; 8 Shepley 364 ; Gibson v. Gibson, 15 Mass. 105 ; Shaw f Wife v. Boyd, 5 S. & R. 309; Sheldon v. Bliss, 8 New York 31; Blackmon v. Blackmon, 16 Ala. 633; 2 Scribner on Dower 384, sect. 32, cited above. Nor can the instrument operate as an estoppel in pais, for, as a general principle of law, it is universally beld that an estoppel in pais will not operate unless the act done or thing said was made in fraud or bad faith, and to the prejudice of the party setting it up. Both of these elements must exist together : Bigelow on Estoppel 473; 2 Scribner on Dower 384; McKenzie

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