than to protect its interest for freight, charges, and loss accruing from the negligence of its employes. This is not double insurance, which makes a proper case of contribution between the several insurance companies. To make such a case, the property insured and the interest insured must be identical. A decree will be signed in aocordance herewith.
Trustee, etc., v.
w: D. Nurth
December Term, 1885.)
CoRPORATION-DECREE AGAINST-EFFEcr AS TO STOCKHOLDERS.
Except in the case of fraud, a decree against a corporation is conclusive against a stockholder thereof, even though there was not personal service upon him. The change of the name of a corporation does not relieve the stockholder of liability, The books of a corporation are primafacieevidence of subscription by those whose names appear thereon as owners of stock.
:.\, 8AME-CHANGE OF NAME-8TOCKHOLDERS, HOW AFFECTED.
SAME-HoOKS-EvIDENCE AS TO SUBSCRmERS TO STOCK.
BOND, J. The above suit was brought to recover an assessment of 80 per cent. upon the stock subscribed for by defendant in the National Express & Transportation Company, incorporated by the legislature of the state of Virginia in the year 1865; the said assessment having been made upon the stock and stockholders of said company by the chancery court of the city of Richtnond, in a suit therein pending by Glenn, administrator, and others, creditors, against the said oorporation. This court is of opinion that most of the matters set up as defenses cannot avail these defendants, because the decree, rendered on the fourteenth day of December, 1880, by the chancery court of the city of Richmond, is conclusive against. a stockholder, although there was no personal service upon him, unless fraud in obtaining the decree is shown, and no fraud in this.casehas been alleged. Mor. Corp. 619; Abb. Corp. 403, 405-407. Now the decree is decisive-First, as to the fact that there was no laches upon the part of the corporation or its trustees previous to the signing of the decree; secondly, as to the statute of limitations; thirdly, as to the existence of bona fide debts against the company; fourthly, as to informalities in the incorporation; and, fifthly, as to the want of power in the trustee to make the call. Mor. Corp. 144, 145; Upton v. Tribilcock, 91 U. S. 45, 55. All these defenses are precluded by the decree. Now the deoree also settles the question that the mere change of name from the National Express Company to the National Express & Transportation Company does not avoid the liability of the stock-
&: O. B. CO.
holder.. Thomp. Liab. Stockh. § 111; Blackbum'8 Oa86, 8 De Gex, M. & G. 177. The defenses not covered by the decree are not sufficient to prevent a recovery by the plaintiff, for it is well settled that the books of a. corporation are prima facie evidence of subscription by those whose names appear thereon as owners of stock. Turnbull v. Payson, 95 U. S. 418. So, also, it is well settled that the substituted trustee is the proper plaintiff in a court of law. Glenn v. Williams, 60 Md. 93; Sanger v. Upton, 91 U. S. 58; Code Va. c. 174, § 8. The call in this case was made by the Richmond court on the fourteenth day of December, 1880. The writ issued on the sixteenth day of November, 1883. Three years not having elapsed, the statute of limitations is no bar on account of the lapse of time since the signing of said decree. Western R. 00. v. Avery, 64 N. 0.491 et seq. The defenses being disposed of, the case is simply this: A stockholder owning 80 per cent. of his subscription asked to be relieved from liability, although the record shows that there are meritorious creditors of the company unpaid. No sufficient reason has been given why this defendant should be relieved from his contract. Let judgment be entered for the plaintiff.
"PEAKE, Adm'r, v. BALTIMORE & O. R. 00.
(OVrcuit Oourt, S. D. Ohio. January, 1886.)
TORTS-INJURY CAUSING DEATH AND DAMAGE TO PROPERTY-WIlEN Two SUITS MAY BE BROUGHT- RES ADJUDICATA-ExECUTORS AND ADMINISTRATORSREV. ST. Oroo, §§ 6134,6135.
Where there was a collision with defendant's train, by which the intestate was killed and his horses and wagon were destroyed, held, that a suit by the administrator, under the Revised Statutes of Ohio. 6134, 6135, to recover damages for the death of the intestate. is not barred by the former of the Value of the horses and wagon, in another suit by the administrator.
On Demurrer. By a collision with the defendant's train at a crossing, the intestate and his two horses were instantly killed, and his wagon was destroyed. The administrator brought two suits in the state court; one for negligently killing the intestate, and the other for negligently destroying his property. There was a judgment in the latter case for $450; afterwards a plea was filed, setting up that recovery and its satisfaction in bar of this case, and there was a reply stating the facts to which this demurrer was filed; and subsequently the cause was removed to this court. Converse, Booth J; Keating and Outhwaite J; Lynn, for plaintiff. J. H. Oollin8, for defendant.