the opinion. To the complaint in the action defendant demurred.

I. D. Van Duzee, for plaintiff.

F. P. Goulding, for defendant.

LOWELL, C. J. The assessment sought to be recovered in this action was made under the general law of New York governing manufacturing corporations, as modified in relation to those established in Herkimer and Cayuga counties by later laws. These statutes are construed and passed upon in Walker v. Crain, 17 Barb. 119; Story v. Furman, 25 N. Y. 214; Hurd v. Tallman, 60 Barb. 272; Cuykendall v. Douglass, 19 Hun, 577; Re Dodge & Stevenson Manufacturing Co., 77 N. Y. 101. The last two of these decisions relate to this assessment and maintain its validity. The allegations of the declaration are sufficient to bring the defendant within the class of persons subject to assessment, until he shall show something to the contrary. Supposing this to be so, will an action lie in this court to recover the defendant's share of the assessment?

That the receiver of an insolvent corporation, having powers like those of an assignee in insolvency, may sue in his own name in this court, I cannot doubt. Hurd v. Elizabeth, 41 N. J. (12 Vroom) 1; Ex parte Norwood, 3 Biss. 504; Hunt v. Jackson, 5 Blatchf. 349. These are direct decisions. The cases in which such actions have been maintained without objection, and others, in which the most eminent judges, while asserting the superior title of domestic attaching creditors, have said that the action itself was maintainable, are very numerous. Goodwin v. Jones, 3 Mass. 517, per Parsons, C. J.; May v. Breed, 7 Cush. 15, 42, per Shaw, C. J.; Dunlap v. Rogers, 47 N. H. 281, 287, per Sargent, J.; Hoyt v. Thompson, 5 N. Y. 320, per Ruggles, C. J.; S. C., 19 N. Y. 207, 226, per Comstock, J.; Merrick's Estate, 2 Ashm. 435, Musselman's Estate, 5 Watts & S. 9; Mann v. Cooke, 20 Conn. 178.

As the rule of the common law concerning the assignment of ordinary non-negotiable debts still obtains in Massachusetts, the receiver might be required to sue on such causes of action in the name of the corporation. Blane v. Drummond, 1 Brock. 62; Bird v. Pierpoint, 1 Johns. 118; Jeffrey v. McTaggart, 6 M. & S. 126. But this demand is one which accrued to the receiver himself in his official capacity.

The Supreme Court hold that the mode in which a liability of this sort is to be enforced depends entirely upon the particular law governing the corporation. If that law merely provides for a proportionate liability of all stockholders for all debts, there should be a bill in equity for the benefit of all the creditors and against all the stockholders. Pollard v. Bailey, 20 Wall. 520; Terry v. Tubman, 92 U. S. 156; Terry v. Little, 101 id. 216. But if the law of the State authorizes an action by one creditor against one stockholder, that remedy may be pursued. Mills v. Scott, 99 id. 25. The decisions in New York, above cited, show that such actions will lie in the courts of that State by the receiver against the several shareholders.

Then the question is whether such an action can be maintained outside the State of New York. There is a dictum of Mr. Justice Clifford that all such statutes are penal, and can only be enforced in the State which passed them. Steam-engine Co. v. Hubbard, 101 U. S. 188, 192. I agree with the plaintiff's argument that the authorities which the learned judge cites decide that point only in respect to officers of corporations made liable for a neglect of duty. Halsey v. McLean, 12 Allen, 438; Derrickson v. Smith, 27 N. J. L. 166; Sturges v. Burton, 8 Ohio St. 215, etc. Even in such cases the doctrine seems narrow and provincial. If a citizen of Massachusetts assumes the obligations of an officer in a corporation in New York I see no sound reason for making the courts of Massachusetts a house of refuge

from these responsibilities. Still a law which imposes certain duties upon an officer, and makes him responsible in case of neglect for all the debts of a company, without regard to the nature of the default or the amount of the debts, or whether he is a shareholder or is paid for his services, has something penal about it. It was held in one case, and in only one so far as I know, that where stockholders were made liable to all the debts, if the directors failed to file an annual statement of the company's affairs, the statute was penal, and to be narrowly construed. It was a domestic controversy, and not precisely in point here. Cable v. McCune, 26 Mo. 371. I have found no case, and counsel have found none, which holds that a liability of shareholders, as such, is penal. The courts of New York have always held such statutes to be remedial, and so have the courts of the other States, so far as I am informed. Thompson, Stockholders, §§ 8086; Corning v. McCullough, 1 N. Y. 47; Carver v. Braintree Manufacturing Co., 2 Story, 432. See Crease v. Babcock, 10 Metc. 557.

In the cases cited by the defendant (Erickson v. Nesmith, 15 Gray, 221; 4 Allen, 233; 46 N. H. 371) the courts of Massachusetts refused to sustain an action at law or a bill in equity against one stockholder of a New Hampshire corporation, and the courts of New Hampshire approved the decision; but the ground was, not that the statute of New Hampshire was penal, but that it provided a specific remedy in behalf of all creditors against all shareholders, and that this remedy could not be conveniently pursued excepting in the domestic forum. According to the reasoning of those cases, this action may be maintained, for the laws of New York, as we have seen, permit a similar action to be brought.

No one can contend that the assessment of National bank shares may not be enforced wherever shareholders are found. Casey v. Galli, 94 U. S. 672. The technical reason is that the act of Congress operates throughout the country, while the laws of New York are local. But what reason is there, upon principle, why the courts should refuse to enforce the same remedy against the same person for the same liability, when the charter happens to be a State charter which has not been turned into a National charter, as it may be at any time by a resolution of the shareholders?

The decisions which bear directly upon the point in controversy are few. I have found none that deny the exercise of comity on the ground that such a statute is penal, or indeed, upon any other. On the contrary, such actions were sustained in the following cases: Bond v. Appleton, 8 Mass. 472; Paine v. Stewart, 33 Conn. 516; Casey v. Galli, 94 U. S. 672; Sackett's Harbor Bank v. Blake, 3 Rich. Eq. 225; Ex parte Van Riper, 20 Wend. 614; Turnbull v. Payson, 95 U. S. 418. In the last case the defendant had not paid up his original subscription in full, but the assessment was under a statute which made him liable beyond his capital stock, and does not appear to have been sustained specially on the first ground.

The statute relied on by the plaintiff provides that all stockholders shall be liable to an amount equal to that of their stock, until the whole of the capital stock fixed and limited by the company shall have been paid in and a certificate thereof shall have been filed. In so far as the law makes shareholders responsible for a neglect of officers to file a certificate, it resembles the case in 26 Mo., above cited; but it differs in the very important circumstances that the liability is restricted to the amount of stock held by each person, and that the subject-matter is the payment of the capital. This statute should be considered not as penal, but as requiring (as all such laws do and must) the utmost care and good faith in contributing the capital, and as prescribing a certain sort of evidence of the fact, without which the shareholders shall be presumed not to have

paid. It does not appear in this case whether the actual default was in the shareholders who had not paid their capital or in the officers who had not certified the paymeut. If it be the former, no one doubts that the defendant is liable with or without a statute. Even if it be the latter, which on demurrer I cannot assume to be true, still it is well known that officers of corporations do neglect the certificate with the knowledge of the shareholders, in order to give the company better credit, and thereby to obtain money and goods at better prices.

I do not feel inclined to extend what I consider the illiberal and narrow rule of comity, or want of it, which stops all remedies at the line of the State. The venerable maxim that he who shares the benefit should share the burden is just, and should not be local in its operation. It applies with full force to shareholders, if not to officers of a corporation who may not even be shareholders, and may act without pay. The cases, as far as they go, point in the same direction.

I ought to notice one further objection, that the assessment appears to have been ex parte, or at least, that there is no allegation that the defendant had a day in court. If this assessment were to have the effect of a judgment against the defendant, there would be great force in this objection, though possibly not controlling force. But I understand that all defenses specially applicable to this defendant, such as that he was not a stockholder, etc., are still open to him, and indeed, perhaps the whole subject may be open. Enough is alleged in the declaration to put him to his defense. Demurrer overruled.

INJUNCTION NOT ALLOWABLE TO RECOVER POSSESSION OF PREMISES.

KANSAS SUPREME COURT, JULY TERM, 1881.

BODWELL V. CRAWFORD.*

Where a party enters into the possession of premises without any authority from the owner and under pretense of a lease made by an unauthorized agent, and puts said premises to a use which is not forbidden by the law, the owner's remedy is an action at law to recover the possession, and he may not resort to equity and obtain an injunction, and thus take away the constitutional right of a trial by jury, on the ground that such use is in his judgment immoral and mischievous in its tendencies, and one calculated to injure his reputation in the community.

ERROR from Shawnee District Court.

Action brought by Bodwell against Crawford to restrain the defendant from using for general amusements, and especially for theatrical purposes, a certain building situate upon lots 217, 219 and 221 on Van Buren street in the city of Topeka, and to abrogate a certain lease, etc. The nature of the action and the facts appear in the opinion. The defendant filed a general demurrer to the petition which the court on May 30, 1881, sustained. This ruling the plaintiff brings here.

S. O. Thacher and John Martin, for plaintiff in error. BREWER, J. This is an application for an injunction filled in the District Court of Shawnee county. But one question is presented in the record and that is whether upon the allegations in the petition the plaintiff is entitled to an injunction. The District Court held that he is not, and from such ruling the plaintiff alleges error. The petition in brief states these facts; The plaintiff, as was well known to the defendant, is an eminent Congregational clergyman of pronounced

* Appearing in 26 Kansas Reports.

opinions on all moral questions of the day. He was an early settler in Topeka, for some years pastor of the Congregational church in that place, and his reputation there was fixed as a man who believed in the pernicious effects of theaters. For some time past he has resided in the State of New York, but still owning real estate in Topeka, which from time to time he leased to various parties through special contracts executed by himself. In looking after his business and collecting rents he employed as agents Ross & Stillson, who had however no authority to lease or to bind the plaintiff by any new contracts. These agents attempted to lease lots of plaintiff, on which was erected a building known as the "Tabernacle," to the defendant for the purpose of general amusements, including theatrical performances. Plaintiff's repug

nance to such amusements was well known to his agents and should have been known by defendant. As soon as plaintiff heard of this transaction, which he did in a very few days by seeing a notice of it in the paper, he repudiated the same by telegraph to the parties, demanding the abrogation of the pretended lease and the cessation of the use of his property for the purposes mentioned, but the defendant declined to abandon the property or discontinue the use. Hence this action was brought.

Do these facts show a case for the interference of a court of equity by the remedy of an injunction? It is clear that the plaintiff, having never leased the lot or authorized its lease is entitled to his legal action to recover possession. The defendant has taken possession without authority from the owner and he has no right to such possession. In all such cases of the unauthorized taking possession of real estate the ordinary remedy is an action at law for the recovery of possession. Under some circumstances the owner may maintain forcible entry and detainer, and in all he may maintain ejectment. Both are actions at law. Has he the further remedy of injunction? Counsel for plaintiff concede that this is a case of first impression, and that a careful examination of the authorities discloses no precedent for such an action. They insist however that our statute concerning injunctions is very broad-broad enough to cover such a case as this- and that unless equity will interfere there is no adequate remedy. Section 238 of the Code authorizes "restraining the commission or continuance of an act, the commission or continuance of which during the litigation would produce injury to the plaintiff." The unauthorized possession by defendant is of course an injury to plaintiff's rights and entitles him to relief; but no one will contend that a mere unlawful possession gives occassion for the interference of a court of equity. The reasons for this are familiar to every lawyer. In equity neither party is of right entitled to a jury, but the Constitution preserves inviolate the right of trial by jury as it exists at the common law, and an action for the recovery of real estate is one in which at common law parties are entitled to a trial by jury. They have a right to the verdict of a jury upon the questions whether plaintiff was owner, whether the defendant was in possession, and whether if so the possession was unlawful. In this very case defendant has a right to the verdict of a jury upon the questions whether Ross & Stillson were general agents of plaintiff and generally authorized to bind him by leases, or were specially authorized to make a lease of these lots without any limitations as to the purposes for which they should be used, and indeed upon every fact essential to plaintiff's right to the possession of the premises. attempt it, to deprive a party of this right of trial by The Legislature has not the power, even if it should jury by simply changing the form of the action; for if it could in respect to the recovery of real estate, it could in respect to any other common-law action, and so by simply legislating as to forms, set at naught the

constitutional guaranty. Does the fact that the defendant, having an unlawful possession, is using the property for purposes abhorrent to the plaintiff's convictions, justify the interference of a court of equity? It must be borne in mind that the use to which this property was put by defendant, however obnoxious to the plaintiff, is not illegal. The defendant violates no law in running a theater, and whatever may be the opinions of the plaintiff or others as to the immoral tendencies of the theater, the law does not condemn its existence. Doubtless the plaintiff feels outraged by having his property used for such purposes, but can it be said that his legal rights are infringed by use for any purpose which the law does not condemn? Careful reflection convinces us that equity will be permitted to interfere to restrain a use, if at all, only when the use is illegal; for there are vast numbers of uses to which property may be put which are sanctioned by law, yet which are immoral in their tendencies in the judgment of many, and obnoxious to their convictions of what is right as well as what is useful and best for society. One may disbelieve in theaters, another in public ball-rooms, and a third in rooms where brokers gamble in stocks, provisions, etc., while still another in lecture-rooms which are open to Spiritualists, Universalists and infidels. Political convictions are intense in some, and the use of their property by the adherents of another political party or for the dissemination of opposite political opinions, would be felt to be an outrage and trespass upon their convictions. Indeed, the diversity of belief is so great that a vast number of the uses to which property may legally be put would be found wrong in the judgment of some. In all such cases can equity be permitted to interfere and restrain the use because of the honest convictions of the owner of the impropriety or immorality of such use? The very great number of cases which in such event would be transferred from the domain of law to that of equity, and thus be relieved from the constitutional guaranty of a trial by jury, compels the conclusion that no precedent can be found because none can constitutionally be made. Counsel refer to cases in which a lessor has obtained an injunction to restrain the lessee from putting property to uses forbidden by the lease, but those cases are not in point; the principle which underlies them is very different. The lessor has a right to the continuance of the lease to the benefits of the rent; in affirming the contract he is simply insisting that the lessee

shall also conform to the contract. True, he may perhaps declare the lease forfeited and recover the property, but he may not desire to do this; he may not be able to lease for the same rent or to an equally responsible tenant, and the lessee ought not to be permitted to compel the lessor either to take back the property or tolerate a forbidden use. But here the unauthorized lease was for theatrical purposes; the plaintiff cannot affirm it in part and disavow it in part. He cannot compel the defendant to retain the property and pay rent, and at the same time discontinue the purpose for which he attempted to lease it. By his suit he disavows this act of his agents- this unauthorized lease and must therefore repudiate it in toto. It is simply the case of the defendant unlawfully taking possession of the plaintiff's property. The relation of landlord and tenant never existed. There is no contract relation between the parties. Defendant by his possession and use has violated no contract and by his use violates no law. In such case the only remedy is the ordinary common-law action for the recovery of possession.

So far as the reputation of the plaintiff is concerned in the community where he once lived, where he is now well known and honored, that reputation is sustained by his prompt disavowal of the unauthorized

lease and an action at law for the recovery of possession, as fully as it would be by a suit in equity. He stands before the community proclaiming his continued adherence to his old-time convictions, and cannot for a moment be thought to have dallied with what he believes to be wrong. Those convictions the law will respect; it will protect defendant in his adherence to them and will give to the fullest extent all its ordinary processes and remedies for their protection.

Counsel, conceding that there is no precedent to sustain this action, intimate that this court should establish one; but it is the duty of courts to stand by the ancient landmarks, to walk super antiquas vias. Additional remedies must be established by other bodies and in other ways.

The conclusion therefore to which we are necessarily led is that the facts stated by plaintiff in his petition are not such as will entitle him to the interference of a court of equity, or take away the constitutional guaranty of trial by jury.

The judgment of the District Court will therefore be affirmed.

CRIMINAL LIABILITY FOR CONSEQUENCE

OF MALICIOUS ACT.

ENGLISH CROWN CASES RESERVED, NOV. 18, 1881.

THE QUEEN V. MARTIN, L. R., 7 Q. B. D. 54. Shortly before the conclusion of a performance at a theatre, M., with the intention and with the result of causing terror in the minds of persons leaving the theatre, put out the gaslights on a staircase which a large number of such persons had to descend in order to leave the theatre, and he also, with the intention and with the result of obstructing the exit, placed an iron bar across a doorway through which they had in leaving to pass.

Upon the lights being thus extinguished a panic seized a large portion of the audience, and they rushed in fright down the staircase, forcing those in front against the iron bar. By reason of the pressure and struggling of the crowd thus created on the staircase, several of the audience were thrown down or otherwise severely injured, and amongst them A. and B.

On proof of these facts the jury convicted M. of unlawfully and maliciously inflicting grievous bodily harm upon A. and B.

Held, by the Court (Lord Coleridge, C. J., Field, Hawkins, Stephen and Cave, J. J.), that M. was rightly convicted.

the general quarter sessions for the borough of

Leeds, held on the 4th of July, 1881, Edwin Martin was tried upon an indictment charging that he did unlawfully and maliciously inflict grievous bodily statute, etc., and by a second count, that he did unlawharm upon George Pybus, against the form [of the fully and maliciously inflict grievous bodily harm upon Martin Dacey, against the form of the statute, etc.

The indictment was framed on the 20th section of 24 & 25 Vict., c. 100.

The evidence for the prosecution was to the following effect:

The gallery in the Theatre Royal at Leeds is reached from the street by a stone staircase, which is lighted by three gaslights, of which one is at the top, one on a landing about the middle, and the third over the door of the pay office, which is at the bottom of the stairs. These lights are all fastened to the walls at the height of seven feet or thereabouts above the stairs or landings. Between the street and the bottom of the staircase there are a pair of folding-doors opening outwards into the street. Each of these doors is divided into halves, of which the halves nearest to the door-posts or walls on each side can be kept closed by means of strong iron bars let into sockets in the stonework of the staircase, and connected with the doors by iron bolts. These bars are movable. The practice was to

11

open only the central halves of the doors whilst the audience were assembling and passing the pay office, so as to limit the number of those who could pass in at the same time, and to remove the iron bars and open the whole of the doors some time before the conclusion of the performance, so as to allow the audience to pass out into the street more quickly.

It was proved that on the night of the 30th of April, 1881, shortly before the conclusion of the performance, the folding-doors were opened to their full extent, and the iron bars placed against the wall of the staircase to the right hand of a person leaving the theatre, and close to the door, according to the usual practice.

The evidence showed that the gallery on this night was filled to the extent of about three-fourths of its total capacity.

The defendant (who was well acquainted with the theatre, having assisted on several occasions as Я supernumerary) was proved to have been in the gallery on this night, and to have been the first, or almost the first, to leave it at the conclusion of the performance. It was proved that he ran quickly down the gallery staircase, and that as he did so he reached up with his hand and put out the gaslight on the middle landing, and also that over the pay office.

It was also proved that as he passed out into the street he took one of the iron bars which was leaning against the wall close to the door on his right hand side, and threw it or placed it partly across the doorway. Almost immediately after this had been done by the defendant the whole of the folding-doors became closed. The evidence as to how this occurred was extremely vague. The result however of the doors being closed and the lower lights extinguished was to leave the lower part of the gallery stairs in almost entire darkness.

Almost immediately after the lights were put out a panic seized the audience, who rushed down stairs and endeavored to find their way into the street. In consequence of the presence of the iron bar, which the defendant had placed or thrown across one part of the doorway, and of the doors being shut, it was some time before any of them could reach the street, and in the meantime the pressure from behind forced those in front against and under the iron bar and against the doors, and a large number of persons were very seriously injured and had to be removed to the infirmary. Among those injured were George Pybus and Martin Dacey. The medical evidence was to the effect that George Pybus showed signs of fracture of the base of the skull, which was probably caused by his slipping and falling backwards as he was running down the stairs after the gaslights had been extinguished, and so striking his head upon the stairs, and that Martin Dacey was suffering from collapse, the result of partial suffocation arising from the pressure to which he had been subjected in the crowd on or at the foot of the stairs.

It was clearly proved that the defendant was on the stage of the theatre after the accident assisting the injured persons who had been brought there. There was no evidence of any previous quarrel or dispute between him and the managers or officials of the theatre, or between him and any person in the gallery. The defense set up for the defendant was an alibi. In summing up the evidence to the jury the learned Recorder directed them that malice was an essential ingredient in the offense charged against the defendant, and intimated to them that if they were of opinion that the conduct of the defendant in extinguishing the lights and throwing the iron bar across the doorway amounted to nothing more than a mere piece of foolish mischief they might acquit him; but that if they believed the acts were done with a deliberate and malicious intention they ought to convict.

The following questions were left to the jury: 1. Did the prisoner extinguish the gaslights, or either of them?

2. Did he place or throw the bar across the doorway in such a manner as to make the means of exit more difficult?

3. If he did extinguish the lights or either of them, did he do so with the intention of causing terror and alarm in the minds of the persons leaving the gallery?

4. If he did throw or place the bar across the doorway, did he do so with the intention of willfully obstructing the means of exit from the gallery?

5. Were Pybus or Dacey, or either of them, injured by reason of any of the acts of the prisoner? and if so by which of them?

The jury found the defendant guilty, answered the first four questions in the affirmative, and stated that they found that both Pybus and Dacey were injured by reason of each of the acts of the defendant mentioned in the first and second questions.

The question for the consideration of the Court was whether the defendant was properly convicted on the above facts and finding of the jury. No counsel appeared.

LORD COLERIDGE, C. J. I am unable to entertain any doubt as to the propriety of this conviction. The prisoner was indicted under 24 & 25 Vict., c. 100, s. 20, which enacts that "whosoever shall unlawfully and maliciously wound, or inflict any grievous bodily harm upon any other person, either with or without any weapon or instrument, shall be guilty of a misdemeanor, etc."

The learned judge, after stating the facts, continued: Upon these facts the prisoner was convicted, and the jury found all that was necessary to sustain the conviction. The prisoner must be taken to have intended the natural consequences of that which he did. He acted "unlawfully and maliciously," not that he had any personal malice against the particular individuals injured, but in the sense of doing an unlawful act calculated to injure, and by which others were in fact injured. Just as in the case of a man who unlawfully fires a gun among a crowd, it is murder if one of the crowd is thereby killed. The prisoner was most properly convicted.

FIELD and HAWKINS, J. J., concurred.

STEPHEN, J. I am entirely of the same opinion, but I wish to add that the Recorder seems to have put the case too favorably for the prisoner, for he put it to the jury to consider whether the prisoner did the act "as a mere piece of foolish mischief." Now it seems to me, that if the prisoner did that which he did as a mere piece of foolish mischief unlawfully and without excuse, he did it "willfully, "that is "maliciously, ' within the meaning of the statute. I think it important to notice this as the word "malicious "is capable of being misunderstood. Lord Blackburn (then Mr. Justice Blackburn) in the cases of Reg. v. Ward, Law Rep., 1 C. C. R. 356, 360, and Reg, v. Pembliton, Law Rep., 2 C. C. R. 119, 122., lays it down that a man acts "maliciously "when he willfully and without lawful excuse does that which he knows will injure another.