Sturgis & Berry vs. Frost.

1. What proceedings are pending on the distress warrant ? The record discloses none. The property seized has been claimed and surrendered. No second levy has been made, and the warrant, if still alive, has ceased to be active. The law makes no provision for contesting any distress warrant directly, except by replevying the goods: Code, section 4083. Where there are no goods to replevy, no contest is possible. If, therefore, all proceedings which have taken place on the distress warrant are not ended, there is no way to end them. They have reached a point where they must endure till time shall be no more, or until some new statute shall be passed to move them forward and terminate their existence.

But it is said that the tenants could have replevied, and, by affidavit, made an issue for trial by the proper court, and that not having done so while the levy was pending, they voluntarily waived their opportunity to lay a foundation for the present action. If this argument were sound it would not prove that proceedings are still pending, but only that a certain possible proceeding never took place. But we cannot sanction the doctrine that if a landlord maliciously and without probable cause, levies a distress warrant upon his tenant he is forever secure against an action for damages, unless the tenant will contest his claim at the cost of giving security for the eventual condemnation money. The Code does not provide for litigating the warrant on any other terms. A mere affidavit disputing the rent will not do; the property must be replevied, and in order to replevy the eventual condemnation money must be secured. This being so, if the tenant is unable to give the security he is at the mercy of the landlord. However groundless the claim, the property must sell; and if it be true that no action for malicious and unfounded levy can be brought unless the sale is arrested, the tenant is without remedy. Such a rule of law as this would imply could gain recognition only by being vouched upon incontestible authority.

2. Distress warrant, considered as a suit, is both beginning and end. It is, of itself, fiual process, and has no pendency

The Dalton, etc., Railroad Company et al. vs. McDaniel et al.

in any court: 34 Georgia Reports, 178. It stands to a suit proper as a guerrilla to a regular soldier, or as a privateer to a ship of the line.

3. What has been said in reference to resisting a distress warrant by any means at all, even upon the hard condition of securing the creditor, applies to a warrant issuing for rent claimed to be due. The Code seems to provide literally for no other case. Its language is (section 4083,) "that the party distrained may in all cases replevy the property so distrained by making oath that the sum, or some part thereof, distrained for is not due, and give security for the eventual condemnation money," etc. The oath here prescribed would not fit a proceeding where the rent was avowedly not yet due. If the tenant had no point to make on the amount of the rent, but simply on the alleged purpose of removing his goods from the premises, could he vary the affidavit accordingly? In view of a decision of this court long ago made, excluding the defense of set-off because not covered by the verbiage of the statute, a doubt might well be entertained on this question: 23 Georgia Reports, 43.

4, 5, 6. The court made certain rulings upon the admissibility of testimony, which we dispose of as indicated in the head-notes.

We express no opinion on other elements of the case further than to say that we think the jury ought to have been allowed to pass upon the facts, under proper instructions from the bench as to the law.

Judgment reversed.

THE DALTON AND MORGANTON RAILROAD COMPANY et al., plaintiffs in error, vs. HENRY T. MCDANIEL et al., defendants in error.

1. Equity will compel the payment of a sufficient per cent. of unpaid stock subscribed, to pay the debts of a corporation; and a bill brought against the stockholders to that end is the proper remedy.

The Dalton, etc., Railroad Company et al. vs. McDaniel et al.

2. The fact that the stockholders agree in their contract to pay such per cent. as the directors shall call for, does not change the remedy and require the creditors to apply for a mandamus against the directors to do their duty under the contract; the remedy in equity is more complete, and is the only appropriate and adequate remedy, where the bill alleges that the directors refuse to call in and collect the stock subscribed, and also that many stockholders are insolvent, and some dead, and some beyond the jurisdiction, and that the debts are of various amounts and due to many creditors; the powers of a court of equity to adjust all the equities, audit the debts, and fix the per cent. upon the solvent stock necessary to pay the debts, are peculiarly adapted to the exigencies of just such a case.

3. Process which commands the attendance of the defendants at court on a certain day, under penalty of the law, is valid; service of the bill by private persons with affidavits annexed, verifying such service, is legal; and if such process and service were irregular, such irregularity would be cured by appearance, demurrer and answer.

4. After defendants are fully heard on demurrer to the whole bill, and the demurrer for want of equity has been overruled, and the answers have been filed, and the case has gone to an auditor and his report has been filed and excepted to, and the case is pending on the exceptions, it is too late to move to dismiss the bill.

Equity. Process. Service. Corporations. Stockholders. Mandamus. Practice in the Superior Court. Before Judge MCCUTCHEN. Whitfield Superior Court. October Term, 1875.

Reported in the opinion.

JOHNSON & MCCAMY; SHUMATE & WILLIAMSON; W. H. BROOKER; WILLIAM PHILLIPS; R. F. LYON, by McCAY & TRIPPE, for plaintiffs in error.

D. A. WALKER; W. K. MOORE; T. R. JONES, for defendants.

JACKSON, Judge.

This bill was brought by H. T. McDaniel in behalf of himself and many others, who were duly made parties complainants, as creditors of the Dalton and Morganton Railroad Company, to compel Samuel M. Carter and a great many others, amounting to several hundred, stockholders of said

The Dalton, etc., Railroad Company et al. vs. McDaniel et al. company, to pay in a sufficient amount of the stock subscribed by them, to satisfy certain judgments and debts which said company owed complainants. The bill alleged that the said McDaniel had obtained judgment for $3,404 17, besides interest and costs, on which execution had issued with a return of nulla bona thereon; that said corporation had ceased to work for two years and had abandoned all efforts to carry out the objects of its incorporation, and that it had no property except the subscriptions for the capital stock, and which subscriptions the directors refused to call and collect in, because they are unwilling to force the subscribers to pay the debts of the corporation.

They set out the contract in writing by which said stockholders had agreed to pay from $1,000 00 to $100 00 each, in such installments as might be assessed from time to time by the directors, provided they were not called upon for over thirty-five per cent. of the amount subscribed per annum. That all of the sums subscribed are now due, that some of the subscribers are dead, some are unable to pay, and that the burden must fall on those able to pay, and all are made defendants to equalize this burden according to equity. That the directors have called for only twenty-five per cent. of the amount, and all they have collected has been paid out to others, leaving complainants unpaid.

The prayer is, that they may be compelled to pay such a per cent. as shall be necessary to pay the debts of the corporation.

The subpoena required the defendants, under penalty of the law, to appear at the superior court of Whitfield county on the first Monday in April next, to answer the bill, and abide the decree, or in default the court will proceed as to justice shall appertain.

Witness, Hon. C. D. McCuthen, judge of said court, dated 2d of January, 1874, and attested by the clerk.

The service of this bill was acknowledged by many of these defendants; others seem to have answered by counsel; others were served, some by the sheriff, and others by private per

The Dalton, etc., Railroad Company et al. vs. McDaniel et al.

sons, with affidavits of service duly attached to the bill and subpoena.

At the return term of the bill, to-wit: at the April term, 1874, an agreement was entered of record, that the defendants, pending negotiations for settlement and the adjustment of equities between the counties interested, should have until the October term, 1874, to demur and answer, and that said October term be considered as the appearance term of the bill. This agreement was signed by counsel for the complainants, and for the stockholders of Fannin county, and Gilmer county, and the stockholders generally.

At said October term a demurrer was filed to the said bill by all the stockholders who had been served, or had acknowledged service, upon the grounds: First. That it did not appear that any of the defendants resided in Whitfield nor in what county they did reside; second, that the bill was improperly brought against defendants jointly; third, because the bill is multifarious; fourth, that the charter requires the directors to call in the stock and the contract obligates the defendants only to obey such call, and therefore the court has no right to assess the per cent. that defendants shall pay; fifth, because complainants have a complete remedy at law; sixth, that their private property and persons are not liable for these debts; and seventh, because there is no equity in the bill.

The presiding judge having been a stockholder, but having assigned his stock, it was agreed that he should preside. This demurrer was overruled, the bill being amended so as to show the jurisdiction of the court.

At the April term, 1875, an auditor was appointed, who made his report at the October term of the same year, answers having been filed by many of the defendants—all, it seems, who had been served-before the appointment of said auditor. The report of the auditor was entered on the minutes, and parties allowed time to except thereto.

Amendatory answers were filed at the same term by many of the defendants, and a return of non est inventus made