it, yet that was not essential to constitute the crime. It was equally larceny if he conceived the intention afterwards, and at the very moment when he did the act.

It is certainly true, as counsel for the appellant have insisted, that there are cases where the taking amounts to no more than a trespass; as where a man takes another's goods openly before his face, or before other persons, other than by apparent robbery; or having possessed himself of them avows the fact before he is questioned; and where the prisoners entered another's stable at night and took out his horses and rode them a considerable distance, and left them at an inn, and were afterwards found pursuing their journey on foot-on a finding by the jury that the prisoners took the horses merely with intent to ride, and afterwards left them, not intending to return or make any further use of them, it was held trespass and not larceny: 2 East P. C. 662; Whart. Crim. L. 557. In all cases of this description, where the circumstances are such as show that the taking was not with a felonious intent, it will amount to no more than a trespass. But it is otherwise where the taking is accompanied by circumstances which demonstrate a felonious intention, as in the present case: the accused professing a wish to see the witness alone; his pretense that he wished merely to see the paper; the destruction of it in order to enable him to sell the property for a greater sum; his representation to the person to whom he immediately proposed to "sell, that he had got back his bond from Mrs. Francis," evidently intending to suppress and conceal the fact that he had destroyed it against her will, and to create the impression that the contract had been canceled and the bond given up by her consent. The charge of the court fairly submitted to the jury the question of intention; and the circumstances seem to demonstrate that it must have been fraudulent and felonious, beyond a doubt. At least, the jury were well warranted by the evidence in so finding.

The charge required the jury to find that the intention of the accused was to benefit himself. In this it was more favorable to the accused than in strictness he was entitled to ask. There can be no doubt that was his intention; and upon the facts of the case the charge was very proper. But to constitute the felonious intent, it is not necessary that the taking should be done lucri causa; taking with an intention to destroy will be sufficient to constitute the offense, if done to serve the offender or another person, though not in a pecuniary way: 2 Russell

AM. DEC. VOL. LXVII-43

on Crimes, 3, 6th Am. from 3d London ed.; 4 Bla. Com. 232, note 8; Archb. Crim. Pl. 362, note 1.

The supposed insufficiency of the indictment, which was the ground of the motion in arrest of judgment, is in that it does not describe, with the requisite certainty, the instrument which was the subject of the larceny. This objection is not tenable. In larceny, the particular quality of the thing, or terms of the contract stolen, do not enter into or constitute an ingredient in the offense. Particular descriptions of the articles stolen are not therefore held to be necessary; if it be described specifically by the name usually applied to it, that will be sufficient. Thus in an indictment for stealing a book, it was held sufficient simply to describe it as a book of a certain value, and that the title of the book need not be stated: State v. Logan, 1 Mo. 531; Whart. Crim. L. 430. And in statutory offenses the description given in the law creating the offense has, in general, been deemed sufficient: Id. 131. " This doctrine," says Wharton, "is founded partly on the fact that the prosecutor is not considered in possession of the article stolen, and is not therefore enabled to give a minute description; and partly because, notwithstanding the general description, it is made certain to the court from the face of the indictment that a crime has been committed if the facts be true:" Id. The indictment describes the instrument by its specific designation in the statute: Hart. Dig., art. 523; and contains all the further certainty of description which the authorities and precedents in similar cases would warrant the court in requiring: Id.; Precedents of Indictments, by Wharton, 196, 197, et seq.

Nor is the objection to the conviction tenable, that the proof did not sustain the averment in the indictment, of property in Mrs. Francis. The rule is, that where one person has the general and another a special property in the thing, the property may be averred in the indictment to be in either: Langford v. State, 8 Tex. 115. And it follows that proof of either a general or special property in the alleged owner will be sufficient to warrant a conviction. The proof puts it beyond doubt that Mrs. Francis had a property in the contract of value more than sufficient to support the conviction under the statute: Hart. Dig., art. 523.

The application for a new trial, resting on the unsupported affidavit of the party, was manifestly insufficient, though its force had not been impaired by the counter-affidavit, or by anything appearing to the contrary of the matters deposed to

by the accused. Nor was there error in receiving the counteraffidavit: Hyde v. State, 16 Tex. 445 [ante, p. 630]. There is no error in the judgment, and it is affirmed.

Judgment affirmed.

FELONIOUS INTENT TO CONSTITUTE LARCENY, NECESSITY AND SUFFICIENCY OF: See Smith v. Shultz, 32 Am. Dec. 33; Offutt v. Earlywine, Id. 40; People v. Call, 43 Id. 655; State v. Hawkins, 33 Id. 294; McDaniel v. State, 47 Id. 93; State v. Homes, 57 Id. 269. To the point that a felonious intent is an essential ingredient of this crime, must exist at the time of the taking, and that it is not sufficient if it be found after the taking, see People v. Call, 43 Am. Dec. 655; and the note to State v. Homes, 57 Id. 273, 275. The principal case is cited to this point in Loza v. State, 1 Tex. App. 490; Quitzow v. State, Id. 69; Neely v. State, 8 Id. 66, 67; Bray v. State, 41 Tex. 205. If the property be taken under an honest though mistaken claim of right, it is not larceny, but at most only a trespass: McDaniel v. State, 47 Am. Dec. 93; State v. Homes, 57 Id. 269; Bray v. State, 41 Tex. 205; Neely v. State, 8 Tex. App. 66, 67, citing the principal case.

LARCENY OF PROPERTY OBTAINED WITH OWNER'S CONSENT and afterwards appropriated: See People v. Call, 43 Am. Dec. 655; State v. Lindenthall, 57 Id. 743; see also the note to State v. Homes, Id. 278 et seq. To the point that property coming into the possession of the accused by lawful means, the subsequent appropriation of it is not theft, but that if the taking though originally lawful was obtained by any false pretext or with any intent to deprive the owner of its value, and appropriate it to the use and benefit of the taker, and it is so appropriated, the accused is guilty of larceny, the principal case is cited in Hudson v. State, 16 Tex. App. 229, 230.

DESCRIPTION OF PROPERTY IN INDICTMENT FOR LARCENY, sufficiency of: See Lord v. State, 51 Am. Dec. 231; Engleman v. State, 52 Id. 494; Bullock v. State, 54 Id. 369; State v. Williams, Id. 184; State v. Smart, 55 Id. 683; State v. Morey, 60 Id. 439, and the notes thereto. An indictment for the unlawful branding of a colt, whose owner is unknown, describing it "by its specific designation in the statute," is good, it not appearing that greater certainty is practicable: State v. Haws, 41 Tex. 162, citing the principal case.

PROOF OF OWNERSHIP ON INDICTMENT FOR LARCENY: See State v. Somerville, 38 Am. Dec. 248.

HENDERSON v. SAN ANTONIO ETC. R. R. Co.

[17 TEXAS, 560.]

STOCKHOLDER MAY SUE CORPORATION for any cause for which any other person might sue, being deemed a stranger to the artifical body created by the charter.

CORPORATION IS LIABLE FOR AGENT'S ACTS, DECLARATIONS, AND FALSE REPRESENTATIONS to the same extent as natural persons.

AGENT'S FRAUD OR MISREPRESENTATIONS WITHOUT PRINCIPAL S KNOWLEDGE or consent nevertheless invalidate a contract entered into on behalf of the principal by the agent within the scope of his authority; or even where the contract is beyond the agent's authority if the principal rati

fies it, for he cannot ratify it without assuming responsibility for the fraud entering into it.

FALSE REPRESENTATIONS NEED NOT BE MADE WITH INTENT TO DECEIVE

or defraud in order to vitiate a contract; if made through carelessness, mistake, or ignorance, they will have the same effect.

ACT EXTENDING TIME FOR COMPLETING RAILROAD DOES NOT AFFECT CONTRACT entered into with the railroad company, the essential inducement of which was an assurance that the road would be built within a certain time, and failure to complete it within that time discharges the other party to the contract, notwithstanding the extension of time. CORPORATION CANNOT, ON GROUND OF PUBLIC INTEREST, CLAIM IMMUNITY FOR WRONGFUL ACTS or violations of its contracts, to the prejudice of others, any more than a natural person.

FALSE REPRESENTATIONS BY COMPANY'S AGENT AS TO TIME OF COMPLETING RAILROAD and as to its probable cost, forming the inducement for a contract with it, vitiate such contract, and the company cannot be held excused on the ground that the parties had equal opportunities for knowing the facts.

FALSE REPRESENTATIONS AS TO FUTURE EVENTS will vitiate a contract, where those events depend upon the acts of the party making the representations and form the inducement for the contract.

APPEAL from a judgment for the defendant in a suit brought by the plaintiff to cancel two deeds made by him to one Jones in trust to convey to the San Antonio and Mexican Gulf Railroad Company, the defendant, and certain conveyances made by Jones to the railroad company in pursuance thereof. The condition of one of the trust deeds was that when the company should be fully organized, and should have put twenty miles of road under contract, and should have located the road "so as to cross Cibolo creek above the sulphur springs to San Antonio," then Jones should convey. The condition of the other deed was that Jones should convey that tract to the company when it should be fully organized, and should issue four shares of stock to the plaintiff. The ground upon which the deeds were sought to be canceled was that they were made on the faith of certain representations by an agent of the company to solicit subscriptions, which representations were charged to be false and fraudulent, to the knowledge of the defendant. The representations were that by a certain time work on the road would be commenced; that twenty miles of it would be completed in three years, and that it would cost ten thousand dollars a mile; that the road would be of very great advantage to the plaintiff; and that taking stock in it would be a profitable investment, etc. It was charged and proved that no work of any conscquence had been done within the three years towards building the road. Other

points, so far as necessary to the understanding of the case, appear from the opinion

W. B. Leigh, for the appellant.

I. A. and G. W. Paschal, for the appellees.

By Court, WHEELER, J. The argument for the appellee questions the right of the plaintiff to maintain the action. He is a stockholder, it is said, and as such cannot sue the company in a suit of this character. If the position were correct, it would result in the affirmance of the judgment, whatever errors may have been committed upon the trial. But the law is otherwise. A private corporation may be sued by one of its own members. This principle is established by numerous decisions, both in the English and American courts: Campbell v. Maund, 5 Ad. & El. 866; Dunston v. Imperial Gaslight Co., 3 Barn. & Adol. 125; Waring v. Catawba Co., 2 Bay, 109; Peirce v. Partridge, 3 Met. 44; Marine Bank v. Birge, 4 Har. & J. 338. In this respect the cases of incorporated companies are entirely dissimilar to those of ordinary copartnerships or unincorporated joint-stock companies. In incorporated companies the individual members are entirely distinct from the artificial body endowed with corporate powers: Angell & Ames on Corp., sec. 390. A member of a corporation, who is a creditor, has the same right of action as any other creditor, and may even attach the property of the company, though he may be personally liable by statute to satisfy other judgments against it: Peirce v. Partridge, 3 Met. 44. The individual members of the corporation are deemed strangers to the artificial body created by the act of incorporation, and may maintain their rights of action against the company, of whatever nature, in the same manner as those who are not members. The fact that by his contract the plaintiff was entitled to become, or was in fact, a stockholder or member did not deprive him of his right of action against the company. On general principles, it would seem not to admit of question that one who, by false and fraudulent representations and inducements held out to him by the company, had been deceived and misled into the making of an injurious contract, by which he became a stockholder and member of the company, might maintain an action against it to rescind the contract and dissolve the connection. To deny the right would be subversive of justice."

The plaintiff having the right to maintain the action, it becomes material to inquire whether there be error in the judg