36 Md. 464 | Md. | 1872
delivered the opinion of the Court.
This bill alleges that the Antictam Manufacturing Company was duly incorporated under the provisions of Article 26 of the Code, with a fixed capital stock of §150,000, of Avhicli about $91,000 \\ras duly taken; that Avith this subscrip
The bill further charges that the company is also largely indebted for labor done and machinery furnished; that the creditors, or some of them at least, have brought suits against the complainants, under sec. 52, of Article 26, to enforce the payment of the same; that the debts and liabilities of the company are largely in excess of its assets and property; and that other creditors will seek redress against the complainants and other stockholders, and prays for the following relief:
1. To compel stockholders to pay their subscriptions to the capital stock of the company.
2. To enforce contributions from all of the stockholders to the extent of the several claims, for the payment of which suits have been instituted against the complainants.
3. To ascertain the entire indebtedness by the company, and the apportionment of liability among the stockholders on account of the same.
4. For the appointment of a receiver, &c.
To this bill the defendants filed a general demurrer, and it is from the decree of the 'Court sustaining the demurrer that this appeal is taken.
In support of the demurrer, it is contended, in the first ' place, that the bill is multifarious. It may not be easy to lay down a rule of universal application, as to what constitutes multifariousness. It is a question resting somewhat in the discretion of the Court, under the circumstances of each case, in the exercise of which they will be careful to guard against a multiplicity of suits on the one hand, and the imposition of needless and oppressive costs on the other. As a general rule, however, we may say, that in order to sustain a demurrer to a bill on this ground, it must appear that several matters perfectly distinct and independent are joined in the bill against
In further support of the demurrer, it is insisted that the complainants have no right to invoke the aid of a Court of Equity for the purpose of compelling the payment of unpaid subscriptions. Ordinarily it is true, that the corporation is the proper party to enforce the payment of subscriptions to its capital stock, but it is equally true that the capital stock
There is a defect, however, fatal to the bill in its present shape. It alleges that the capital stock of the company was fixed at $150,000, of which only about $91,000 was subscribed. Under such a charter we have heretofore decided that the liability of a subscriber for his subscription depended upon the whole capital stock being taken, unless by his acts or declarations, before or subsequent to the organization of the company, he has waived the right to set up this defence.
The corporation ought also to have been made a party to the suit. The bill does not allege that it has been dissolved, nor does it pray for a dissolution.
How far a company, by suffering acts to bo done, totally destructive of the end and object for which it was incorporated, may he treated as having virtually surrendered its charter, or its dissolved, is 2 {question not to ho dooidod in this ease. It is 'well settled, that so long as a corporation has the power to increase its subscription — to call in more capital and resume its business, the mere allegation that its debts are largely in excess of its assets, and that it has conveyed its property in trust to pay the same, does not warrant a Court of Equity in treating it as ipso facto dissolved.
Eor these reasons the decree below must be affirmed, hut we will remand the cause in order that the bill may be amended in conformity with the views herein expressed.
Decree affirmed and cause remanded for f urther proceedings.