Jones v. Terre Haute and Richmond Rail Road Co.

date, and gave the plaintiff no right to be deemed a stockholder. If it had been shown that application for letters on that day was purposely avoided, another question might arise on this branch of the case which it is not necessary now to discuss.

Prima facie all stockholders, at any particular period, are cqually interested in the property and business of a corporation. They assume the same liabilities, are entitled to the same rights, and are equal owners of the property. When, therefore, the directors undertake to distribute among the stockholders any portion of the funds or property of a corporation whether it be called profits or not-all the stockholders are entitled to an equal share in the fund, proportionate to their stock; whether they have been stockholders for a longer or shorter period. Unless the charter gives the directors power to discriminate between the stockholders at different periods in the distribution of profits, they are all entitled to share therein. The designation of a fiscal year has nothing to do with the distribution of its proceeds among the stockholders at the close thereof. It may be more properly referred to as the period for making up on the books annual accounts. If it limited the profits to those who held stock at that time, it would alike exclude stockholders who subsequently acquired stock from any surplus remaining after the dividend was declared, as it would from a participation in the dividend then made. But it is not even necessary for the purposes of this appeal to invoke the aid of these principles. By the terms of the resolution itself, the seven per cent dividend in cash was made to the stockholders then holding stock, without any discrimination. This dividend was declared to be a dividend of seven per cent out of the surplus earnings of the road, ending November 30th, payable January 6th. It was not limited, as the stock dividend was, to those who held stock at the close of the fiscal year. It was unlimited. Who were then entitled to it? The stockholders. Who were they? All who held stock when the resolution was passed, on the 17th December.

Jones v. Terre Haute and Richmond Rail Road Co.

The plaintiff was at that time a stockholder, by the voluntary act of the defendants. As such he was entitled to a dividend on his stock, under this resolution, just as much as were the other stockholders. Any other rule would give to the officers of a company a discretionary power as to whom they would pay dividends to. They must pay to the persons holding stock on the books of the company. If the directors, in making the dividend, do not limit the period, the officers have no right to do so, and their only guide is the stock book to ascertain the parties entitled thereto at the date when the dividend is declared. As the plaintiff was a stockholder on the books of the company at the time the dividend was declared, he was entitled to the cash dividend under the resolution as passed by the board of directors on the 17th of December, 1856.

I do not mean to be understood as applying these rules to a case where the dividend is declared before the books are opened. There the officers must be governed by the books as they existed at the time they were closed, and the distribution be made accordingly.

The views above expressed dispose of this appeal, and render a new trial necessary. It is therefore not requisite that we should examine the other question in the case, viz. whether a board of directors, in making a dividend, can limit it to persons holding stock at any given time, to the exclusion of others who subsequently acquire stock. The question is not free from difficulty, and I am inclined to the opinion that the board of directors had no power thus to diminish the value of the stock. But as a new trial must be ordered, we refrain from expressing any further opinion thereon, at the present time. New trial ordered; costs to abide the event.

[NEW YORK GENERAL TERM, May 2, 1859. Roosevelt, Pratt and Ingraham, Justices.]

MOERS vs. MORRO and others.

Appeals from orders denying motions to vacate orders of arrest, where the party is on bail, and cannot therefore be seriously injured by the order of arrest remaining in force, are not to be encouraged.

Upon an appeal in such a case, two adjudications having already been had that a prima facie case has been made out for the arrest of the defendants, viz. once on the granting of the order of arrest, and the second time on the motion to vacate it-the facts found by the court below, necessary to sustain the order, will be deemed established; unless the contrary can be clearly shown.

In what cases the acts and declarations of one of several conspirators are admissible in evidence against the others.

HIS was an appeal, by the defendant Martens, from an order made at a special term, denying a motion to vacate an order of arrest. The complaint charged all the defendants with having entered into a conspiracy to defraud the plaintiffs out of a quantity of tobacco. The opinion of the court contains the other facts in the case.

By the Court, DAVIES, J. In this case an order of arrest was granted by one of the justices of this court, by which all of the defendants have been arrested. A motion, on their behalf to discharge the order of arrest, was denied. This motion was founded solely upon the affidavits on the part of the plaintiff, without any denial or counter affidavits on the part of the defendants, or either of them. From this order the defendant Martens alone has appealed.

We do not think appeals from orders of this character are to be encouraged. The order of arrest is a provisional remedy, not affecting the points of the case, and where the party is on bail, he cannot be seriously prejudiced by the order remaining in force until the final termination of the action.

The attention of the court has already twice been called to these facts; once on granting the order, and the second time on the motion to vacate it. Two adjudications have therefore already been had that a prima facie case has been made

Moers v. Morro.

out for the arrest of all the defendants, and the facts found by the court below necessary to sustain these adjudications are, on appeal, to be deemed as established, unless the contrary can be clearly pointed out. We are not prepared to say that the learned justice, who heard the motion and granted the order, has found facts not warranted by the evidence before him.

It is charged in the affidavits, and not denied, that a conspiracy to cheat and defraud the plaintiff was formed by all the defendants; that each did certain acts, as part of the general scheme, having that object in view; and the acts and declarations of each defendant in thus aiding and carrying out this general scheme are particularly detailed. The actual conspiracy being charged, and not denied, is to be assumed to be established. Each of the defendants is deemed in law a party to all acts done by any of the other parties in furtherance of the common design. (3 Greenl. Ev. § 93.) And the acts and declarations of the other conspirators are admitted as evidence against each, upon the principle that by the act of conspiring together, they have jointly assumed to themselves, as a body, the attribute of individuality, so far as regards the prosecution of the common design; thus rendering whatever is done or said by any one, in furtherance of that design, a part of the res gesta, and therefore the act of all. It is the same principle of identity with each other that governs in regard to the acts and admissions of agents, when offered in evidence against their principals, and of partners against the partnership. (3 Greenl. Ev. § 94.) In the affidavits before us it is alleged, and not denied, that Martens, at the time he agreed to discount and pay cash for the notes of Morro & Nehmeyer for the tobacco, to be sold to them by the plaintiff, and on the faith of which the plaintiff let them have the tobacco, "well knew that said firm of Morro & Nehmeyer was insolvent, and that judgment had been obtained against them, and that said firm had no credit whatever;" and that at the time said firm of Morro & Nehmeyer

French v. Mayor &c. of New York.

was indebted to Martens; that he was intimately acquainted with the business and transactions of said firm, and then claimed to own all the property then in the apparent possession of said firm; and that he made the representations stated with the design to cheat and defraud the plaintiff, and with the design to get said tobacco into the possession and under the control of Morro & Nehmeyer, that he might, by means thereof, succeed in realizing the amount due to him from said firm.

With these statements uncontradicted before the justice at special term, we are not surprised that he refused to vacate the order of arrest. We think such refusal to be correct, and the order appealed from is affirmed, with costs.

[NEW YORK GENERAL TERM, May 2, 1859. Roosevelt, Davies and Clerke, Justices.]

FRENCH AND HEISER VS. THE MAYOR &C. OF NEW YORK.

The covenants in a lease were, that on the last day of the term the lessees would surrender the demised premises, "and all the improvements that may have been placed thereon by the said" lessees, "and which improvements are to belong to" the lessors, " and all of which are to be surrendered up in as good state and condition as reasonable use and wear thereof will permit, damages by the elements excepted." Held that the parties intended, the one to surrender, and the other to receive and accept, at the termination of the lease, all the improvements which should be placed thereon by the tenants during the lease; and that such improvements embraced all additions, erections or alterations made by the tenants during the term, and such as were used by them in the enjoyment of the lease. And that, on the expiration of the term, the improvements became the property of the lessors, who had a right to retain them.

ΟΝ

N the 28th of March, 1843, the defendants leased to the plaintiffs the premises known as "Castle Garden," for eleven years from May 1st, 1843, at an annual rent of $2000.