in which event the defendant shall pay the costs. If the first attempt to deprive the defendant of his property is unsuccessful it may be repeated, and if the petitioner has taken possession without right the court or judge may allow him to retain possession, or he may be allowed to take possession during proceedings on paying a sufficient sum into court or giving security that he will pay the compensation awarded. If the person to be deprived be an infant, idiot or insane, the guardian, executor or administrator, as the case may be, shall be subject to process, judgment or decree, or without process, judgment or decree, may transfer the property to the petitioner, the sale being approved by the judge of the proper court. There are other provisions somewhat superogatory, but the manifest improvement in this over the act repealed, is the utter absence of the jury. It is to the carrying out of proceedings of this kind that juries are apt to interpose obstacles. This was doubtless the chief objection to the statute repealed. It would also be much more secure if there were a provision cutting off all right of appeal.2

1 Stat. 1866, p. 196. 2 Stat. 1875, p. 111.

$303. Corporations.-An act for the formation of corporations for mining and other purposes, approved December 20, 1862, was amended by a subsequent act1 in many of its most important provisions, and Section 27 was, by the latter act, repealed. Section 26, requiring corporations heretofore formed in other states to remove their principal place of business to the territory, was disapproved and thereby rendered null by act of Congress of March 3, 1863.2 Section two, of the act of 1864, has substantially the same provisions as to manner of incorporating a company as under the California statute.

Section three requires security from the trustees, and provides for their removal from office. Section four requires not less than three trustees, resident stockholders, and provides that they may be removed by a two-thirds vote of the stockholders at a meeting called pursuant to the by-laws. It also prescribes an oath to be taken by incoming trustees; that elections shall be annual after the expiration of the time of the first incumbents, and the manner of filling vacancies in the board by election in case of deposition, and appointment in case of death or resignation. Section five gives stockholders power to prescribe, by by-law, the times of paying assessments, but in the absence of by-law may be called for by trustees. In case of delinquency, the sale of sufficient shares to pay assessments shall be made according to the bylaws, but at the office of the company, at public auction, to the highest bidder, after four weeks' published notice, the bidding being the same as under California statute.4 Section six authorizes a change of capital stock. Section seven requires advertisement of removal of place of business in same county, and refiling certificate if removed to new county. It also provides that acts of old corporations shall not be invalidated, provided that within three months they publish the same for four consecutive weeks in the nearest newspaper. Section eight authorizes the payment of subscriptions in mining property, and does not require the capital stock to be all subscribed or paid in, but leaves the regulation of the manner and time of calling in assessments to the by-laws.5 Both the foregoing acts were subsequently repealed by act of March 10, 1865. Section one, of this act, authorizes corporations for a variety of purposes, including mining, milling, and ditching.6 Section two is the same as in the repealed act. Section three makes a certified copy of certificate of incorporation prima facie evidence. Section four pre

scribes the ordinary powers of corporations, and in addition, the power to purchase its own stock sold for delinquency, and legalizes previous purchases of the same. The provisions as to holding and control of such stock are the same as in the California statute.7 Section five contains the same provisions as to election of trustees, their oath of office, deposition and filling vacancies, as were contained in Section 4 of the act of 1864 repealed,8 except that the trustees are not required to be residents of the state.9 Section six, providing for adjourned elections in case of failure on the day appointed, was amended by act of February 24, 1866, so as to authorize the call of a stockholders' meeting by an officer on request of holders of one-third the stock, in case the newly elected trustees fail to qualify within thirty days, to elect new trustees to fill the vacancy.10 Section seven is that a majority will form a quorum of trustees, and a majority at the meeting may perform corporate acts. Section eight provides for first meeting of trustees being called by one of their number by personal notice to others, or by publication twenty days. Section nine provides that shares of stock, when so divided, shall be personal property, transferable by indorsement, and transfers to be entered on the company's books, to be valid except between the parties; may be transferred by a married woman as by a femme sole, and she may receive dividends in the same manner. Section ten contains the same provisions as to assessments, delinquency, sales of stock for non-payment of calls, etc., as Section 5 of the repealed act of 1864.11 Section eleven provides for the representation of stock by guardians, trustees, and personal representatives. Section twelve, that owners of hypothecated stock may still represent the same, and vote as other stockholders. Section thirteen provides that in case of a declaration of dividends from the capital stock, or other

wise than out of net profits, or the unlawful reduction of the capital stock, the trustees shall become personally, jointly, and severally liable to the corporation, or “in the event of its dissolution" to creditors, exempting trustees who cause their dissent to be entered at large upon the minutes, and those who were absent from the meeting, from such ability, and providing that the capital stock may be divided on dissolution after payment of debts.12 Section fourteen limits the indebtedness to the amount of capital stock paid in, imposing upon the trustees under whose administration any excess occurs, the same liabilities, with the same exceptions, as in Section 13. Section fifteen prohibits the issue of circulating notes. Section sixteen requires the same list of stockholders to be kept for inspection, authorizes transcripts from the same, and makes such transcripts evidence, as in the California statute.18 Section seventeen prescribes the penalty for breach of duty in failing to comply with provisions of Section sixteen, to be not less than one hundred nor more than one thousand dollars. Section eighteen authorizes a change of capital stock provided that it shall not be reduced below the indebtedness, without first paying the excess. Section nineteen provides that the change of capital stock shall be at stockholders' meeting. Notice of which containing the time and place of meeting, and the proposed change in amount, signed by at least a majority of the trustees, shall be published eight weeks. A two-thirds vote is necessary to make the change. Section twenty provides that when the change is so effected, a certificate of the fact, showing a compliance with all the legal conditions to such change shall be signed and verified by the chairman and secretary, and filed as required in case of the certificate of corporation. Section twenty-one makes the trustees of the corporation

tees both of creditors and stockholders in case

of dissolution. Section twenty-two authorizes the voluntary disincorporation of companies on a majority vote of the stockholders, and a petition to the district judge, eight weeks' publication, and a finding by the judge that the requisite preliminary steps have been taken, and claims against the company discharged. Section twenty-three is the same as Section seven of the act of 1864 repealed.14 Section twenty-four is substantially the same as Section eight of the act of 1864 repealed.15 Section twenty-five provides that mining corporations shall be governed by district laws, provided that expenditures in incorporating and procuring books shall be regarded as work done on the claim. Section twenty-six, that in case of disincorporation, the trustees shall convey to each stockholder his proportionate interest in mining claims owned by the company. Section twenty-seven is the repealing clause.16 Section twenty-eight was supplied by a subsequent act, extending the provisions of the act to prior corporations.17 Mining corporations have power, acting by a majority of the stockholders, to purchase and hold such mining property as they may deem meet.18

1 Feb. 19, 1864.

2 Stat. at Large, 37th Cong., p. 709.

3 Ante, § 184, et seq.

4 Ante, § 189.

5 Stat. 1864, p. 49.

6 Amended by act of March 1, 1866, to include "ore reduction." Stat. 1866, p. 165. Further amended so as to authorize mining companies to become stockholders in corporations formed for the purpose of constructing tunnels, shafts, or other work. Stat. 1867, p. 44. Subsequently amended as to matters not material here. Stat. 1869, p. 95.

7 Ante, § 184, et seq.

8 Supra.

9 This section amended. See infra, § 304. "Removal of officers." 10 Stat. 1866, p. 79.

11 Supra.