that "whereas great evils have existed, and do yet exist, in this state, in consequence of the law of England, regulating writs of ne exeat, not having provided for cases where the demand set forth by the complainant is not due"-for remedy whereof, it is enacted, that "the judges of the superior courts shall be and they are thereby authorized to grant writs of ne exeat, as well in cases where the debt or demand is not due, but exists fairly and bona fide in expectancy at the time of making application, as in cases where the demand is due." It further provides, that "in case of joint and several obligors, if any one or more of them are about to remove without the jurisdictional limits of this state, and are carrying off their property, leaving one or more fellow-obligors, bound with them for the payment of any debt, penalty, or for the delivery of property at a certain time, which time has not arrived, such obligor or obligors, who remain, shall have the benefit of the writ of ne exeat," etc. All securities, likewise, are allowed the advantage of this remedy: Prince, 440, 441. It is obvious that this act has overturned and superseded the whole doctrine of the English law upon this subject, and made the writ of ne exeat applicable to all sorts of liabilities due or undue-certain or otherwise-if they, bona fide, exist in expectancy at the time the writ is applied for.

Now, it will be borne in mind, that our statute requires that in cases where partial or conditional divorces are granted, the jury shall inquire into the situation of the parties before their intermarriage, and also at the time of the trial; and they shall, by their verdict or decree, make provision out of the property of which the husband may be possessed, for the separate maintenance and support of the wife and children, if there be any; which verdict or decree shall be carried into effect, etc.: Prince, 187. The bill charges that the defendant has property in possession, of the value of four thousand dollars, and that there are no children; and the complainant not only makes a case in her bill, which shows that she is entitled to suitable provision for her maintenance, but her affidavit states expressly, that she considers herself entitled to adequate support out of her husband's property. Here, then, in contemplation of the statute of 1813, is "a bona fide demand, existing in expectancy," and comes both within the spirit and letter of the act. We feel the less hesitancy in coming to this conclusion, not only because it is essential to the ends of justice, but it is warranted by the universal practice which has obtained throughout the state under this act.

Complaint is made in the bill of exceptions, that the court decided, in advance, that if the defendant should file his answer, denying the charges in the bill, the ne exeat should still be continued, till the hearing of the libel for divorce; and that the only mode by which the defendant could relieve himself from the writ was by giving bail, as at common law, or bond and security for the eventual condemnation money.

The act of 1830 declares, that "in all cases where persons may thereafter be arrested by virtue of writs of ne exeat, they shall be discharged on their giving bond, with good and sufficient security, either that they will not depart this state, or for the payment of the eventual condemnation money:" Prince, 468.

It is somewhat inaccurate, therefore, to prescribe bail to be given as at common law, where the condition of the recognizance is, that in case the defendant is cast in the suit, he (the defendant) will satisfy the condemnation, or render his body into prison in execution for the same, or he (the bail) will do it for him: whereas, as we have seen, under the act of 1830, the only condition of the bond is, that the defendant will not depart the state, or satisfy the ultimate recovery.

But we apprehend that it is still competent for the defendant to show, as he might do before, that the writ of ne exeat ought not to have been granted: 2 Tuck. Com. 486. Otherwise, writs of ne exeat would often operate very harshly. We do not say that we should undertake to control the discretion of the circuit judge, should he hold, as he said he would, that he should retain the writ till the hearing of the divorce, notwithstanding the defendant should, by his answer, deny all the charges in the bill; still, as a matter of legal right, we should be loath to sanction the principle that the door of justice was barred in this case against the privilege of being heard.

Not viewing any of the obstacles, then, to this proceeding as insurmountable, and taking it for granted that while courts will maintain this writ for the purpose of securing to the wife and offspring provision, in accordance with the rank of the parties and the fortune of the husband, that they will take care at the same time that it is not used for oppression and extortion, we affirm the judgment of the superior court.

NE EXEAT, WHEN GRANTED: See Gilbert v. Colt, 14 Am. Dec. 557, and note, where the subject receives a lengthy discussion; Rhodes v. Cousins, 18 Id. 715; Mitchell v. Bunch, 22 Id. 669; Brown v. Haff, 28 Id. 425, and note; McNamara v. Dwyer, 32 Id. 627.

AMOUNT OF ALIMONY, HUSBAND'S PROPERTY TO BE CONSIDERED IN ESTIMATING: See Fishli v. Fishli, 12 Am. Dec. 251; Lockridge v. Lockridge, 28 Id. 52.

THE PRINCIPAL CASE IS CITED in Standley v. State of Georgia, 10 Ga. 84, in support of the proposition that the defendant should be allowed to show cause, in avoidance of a primary disqualification of a juror; and in McGehee v. Polk, 24 Id. 411, to the effect that, in granting a ne exeat, absolute cer. tainty as to the sum due is not indispensable, the complainant being excusa. ble when the exact sum can not be ascertained.

This case appears before the court again in 10 Ga. 477.

HIGHTOWER v. THORNTON.

[8 GEORGIA, 486.]

DEBTS DUE TO AND FROM CORPORATION are extinguished, at common law, upon its dissolution.

INDIVIDUALS COMPOSING CORPORATION MAY, BY CONTRACT OR IN LAW, INCUR LIABILITIES, in respect thereto, which will survive their charter and be enforceable at law or in equity.

CAPITAL STOCK OF CORPORATION IS DEEMED TRUST FUND for the payment of its debts.

AMOUNT OF SHARES OF CAPITAL STOCK ORIGINALLY SUBSCRIBEd for, and NOT SUM ACTUALLY PAID IN, constitutes the capital stock of a corporation.

BOTH BEFORE AND AFTER DISSOLUTION, DIRECTORS OR ASSIGNEES OF COR. PORATION MAY BE COMPELLED TO COLLECT amount of capital stock not paid up, and apply it to the payment of the corporation debts. Equity will hold the stockholder liable for said debts to the extent of his unpaid subscription.

EQUITY OF CREDITOR IS EQUALLY STRONG WHERE STOCKHOLDER HAS CONTRACTED TO PAY but never has paid his portion of the capital stock, as where it has been actually paid in and afterwards returned.

BETWEEN BANKING AND OTHER CORPORATIONS there is no distinction as to the liability of stockholders for capital stock not paid up.

STATUTORY PROVISION FOR SALE OF DELINQUENT STOCK IS MERELY FOR BENEFIT OF CORPORATION, and is not to be construed a privilege of the stockholder to abandon his shares at will.

REMEDY BY SALE OF DELINQUENT STOCK IS CUMULATIVE, and does not impair right to compel payment by action.

DECREE BASED UPON STOCKHOLDER'S LIABILITY FOR UNPAID CAPITAL STOCK should give him all the privileges to which he would have been entitled under the charter, had the stock been called in by the directors during the existence of the corporation.

TO TRUSTS FALLING EXCLUSIVELY WITHIN THE JURISDICTION OF EQUITY, the presumption, from lapse of time, of satisfaction, payment, or waiver does not apply.

TO BILL FILED WITHIN FIVE YEARS AFTER THE LIABILITY ACCRUED the the doctrine of stale demand furnishes no defense.

EQUITABLE REMEDY AGAINST SUBSCRIBED BUT UNPAID CAPITAL STOCK ACCRUES when the legal assets of the corporation are exhausted. OBJECTION OF WANT OF PROPER PARTIES can not be raised on motion to dismiss a bill for want of equity.

BILL IN CHANCERY IS NEVER DISMISSED FOR WANT OF PARTIES, provided necessary parties can be made, but stands over on payment of costs. WHERE NECESSARY PARTIES CAN NOT BE MADE, bill must be dismissed. RIGHT OF CREDITOR OF CORPORATION TO MAINTAIN SUIT IN EQUITY IN HIS OWN NAME, AGAINST STOCKHOLDERS not having paid up the capital stock subscribed for, exists independent of statutory enactments. But where the appointment of a receiver has been ratified by the legislature, the suit should be prosecuted in his name, unless some sufficient excuse is rendered, in which case such assignee should be made a party defendant.

BILL in equity filed by Daniel Hightower as judgment creditor of the Planters' and Mechanics' Bank of Columbus, averring the bank to be totally insolvent, and the charter to have been forfeited by decree of the superior court; but further averring that of the originally subscribed capital stock, one million dollars, in shares of one hundred dollars each, only twenty-five dollars per share had been paid in by the stockholders, and therefore praying that it be decreed that the stockholders pay into court, out of the amount due on the capital stock, sums sufcient in amount to satisfy complainant's claim. Motion to dismiss bill for want of equity sustained, and complainant brings

error.

W. Dougherty, for the plaintiff in error.

H. Holt and Sturges, for the defendant.

By Court, LUMPKIN, J. The case made by this record is simply this: A judgment creditor of the late Planters' and Mechanics' Bank of Columbus, having prosecuted his claim against the corporation to insolvency, filed his bill, alleging that the corporation was dissolved, both in fact and in form, and praying that the stockholders of the bank, who, it was averred, had paid only twenty-five dollars on the share-the capital stock being one million, in shares of one hundred dollars each-might be decreed to pay into court such sums on their unpaid stock as should be sufficient to discharge the complainant's demand. Are these unpaid subscriptions corporate property, and can they be reached by the creditors in a court of equity?

Upon the threshold of this discussion we are met with the common-law principle-that upon the dissolution of a corporation the debts due to and from it are extinguished. A doctrine which results, necessarily, from the fact that the corporation

having expired, whether by its own limitation, by surrender, abandonment of its members, or judgment of dissolution, there is no one in law to sue or be sued.

But it does not follow that the individuals who composed this corporation (and corporations aggregate are but associations of individuals) may not, by contract or in law, have incurred liabilities which will survive their charter, and which will be enforced at law or in equity, according to the circumstances of the case. In the case of Lane v. Morris, 8 Ga. 468, just decided, the liability was by contract, and a common action of debt, as provided for by the charter, was found to be an ample remedy.

Here the liability is equitable only, resulting from the undertaking of the defendant to the corporation-that he would subscribe so much to the capital stock of the company. After having acquired credit and contracted debts, upon the faith of this subscription, the company has failed, and its franchise been seised into the hands of the state, upon quo warranto. Will not the party be bound in equity to fulfill his promise?

And will not a court of equity provide a remedy to compel him to perform his just obligations, notwithstanding the dissolution of the corporation?

When, upon quo warranto, the franchise of the city of London was recalled by the king, their right to sue as a corporation ceased; but their liabilities, in the capacity they had sustained, were not extinguished: Proceedings between the King and the City of London, 8 Howell's St. Trials, 1087.

Judge Story, in treating of implied trusts, says, that to this head may be referred that class of cases, where the stock, and other property of private corporations, is deemed a trust fund, for the payment of the debts of the corporation. So that the creditors have a lien or right of priority of payment on it, in preference to any of the stockholders in the corporation. Therefore, if the corporation is dissolved, the contracts of such corporation are not thereby deemed extinguished; but they survive the dissolution of the corporation, and the creditors may enforce their claims against any property belonging to the corporation, which has not passed into the hands of a bona fide purchaser; for such property will be held affected with a trust, primarily for the creditors of the company, and subject to their right, secondarily for the stockholders, in proportion to their interest therein. Upon the like ground, the capital stock of an incorporated bank is deemed a trust fund for all the debts of the corporation: 2 Story's Eq. Jur., sec. 1252.