to offenses committed within the territorial boundaries of the sovereignty. We have no doubt of our jurisdiction of this case. and the demurrer must be overruled.
WASSERMAN 'V. LOUISVILLE
& N. R. Co. and others.s
MALICIOUS PROSECUTION-.AllSENCl!l OF PROBABLE CAUSE.
In order to succeed in an action for damages for malicious prosecution, it is necessary that there should have been absence of probable cause on the part of the defendants.
On Motion for New Trial. John D. Rouse. Wm. Grant, J. DUfilho, and A. J. Murphy. for plaintiff. Henry I. Leovy, Geo. J. Leavy, J. P. Blair, T. L. Bayne, Geo. Denegre, Gimult Farrar, E. L. Simonds,J. H. Kennard, W. W. Hou'e, S. S. Prentiss, E. H. Farrar. and E. B. Kruttschnitt, for defendants.
BILLINGS, J. The case is before me on a motion for a new trial. The trial was before a jury, and resulted in a verdict for the plaintiff for $5,000. The defendants, comprising four of the railroads terminating in the city of New Orleans, were sued by the plaintiff for damages arising from what is averred to be a prosecution. I think the verdict must be set asiile, and a new trial granted. The plaintiff connected the defendants with the prosecution, but he altogether failed to show the absence of probable cause for the prosecution. The defendants, during the recent exposition, in their efforts to discover and prevent the abuse of the round-trip ticket system, whereby the tickets were sold to particular individuals, and were not transferable, through an officer (Gaster) laid before the district attorney of the parish of Orleans the facts relative to an affair springing out of the attempt to use one of 'these personal tickets by an individual other than the one named in the ticket. The district attorney is charged by law, and by the practice in the courts of this state, with prosecuting, by information, all offenders, without affidavit. It thus becomes his duty to receive, and the duty of all good citizens to give, in good faith, information with reference to supposed crimes. Upon learning the facts of the affair of the sale of the ticket with which the plaintiff was connected, the district attorney filed an information for forgery, which he afterwards abandoned, on the ground
Reported by Joseph P. Horner, Esq., of the New Orleans bar.
WASSERMAN t1. LOUISVILLE &: N. R. CO.
that the statute of the state did not include forgery of railroad tickets. He filed the first information upon a statement of facts by Gaster, who undoubtedly derived them from the defendants. But there was not a hint in the evidence that the facts were not stated by the deto Gaster, and by Gaster to the district attorney, in good faith, and truthfully. Upon abandoning the first prosecution, the district attorney, so far as the evidence discloses, upon his own motion, and without any suggestion from the defendants, filed a second information against the plaintiff, charging him with cheating the purchaser of a ticket. The plaintiff was acquitted before a jury, because. it appeared that the purchaser was cognizant of all the facts; therefore was not imposed upon, but knew, from the beginning, that the ticket was not transferable. As to the first information, the facts were truly stated by Gaster, the officer of tbe city police, and if such facts were communicated by the defendants, it would make no difference, as the facts were shown to have been truly and fairly stated. If there was any error, it was upon the question of law whether ornot forgery of a name on a railroad ticket was or was not forgery under the law of Louisiana. If there was an error of law on the part of the district attorney, the defendants could not be held responsible. The district attorney, who was examined as a witness, exhibited the fact that he was conscientiously active in the discharge of his high official and public duties throughout the whole prosecution, and impressed the court as possessing ability and scrupulous fidelity. There was no erroneous statement of facts; indeed, no statement at all on the part of the defendants, with the view to influence the second prosecution. The defendants, tberefore, could not be properly held responsible for the second information. The verdict, therefore, should have been for the defendants in this case. There was no evidence tending to show any misrepresentation on the part of the defendants. Whatever they stated, they stated truthfully, to an officer to whom it was their duty to communicate all facts with reference to supposed crimes. I wish to add that the plaintiff's case, all through the trial, notwithstanding the ingenuity and ability with which it was presented by his counsel, was under a cloud, from the circumstances attending the sale by him of a ticket to a person who was to personate the original purchaser of the ticket, and pass under another person's name. Courts cannot favor such transactions. A new trial is therefore granted.
Trustee, etc., v.
\ Circuit Oourt,
Virginia. September 80, 1886.)
ACTION OR SUIT - ASSIGNEE OF CORPORATION SUING IN HIS OWN CODE VA. 1873, Cn. 141, § 17.
Under section 17, c. 141, Code Va. 1878, authorizing assignees of non-negotiable instruments to sue in their own names, a trustee and assignee of a joint· stock company mllY sue in his own name for unpaid subscriptions to the capital stock of the company. Where a subscriber to the capital stock of a company has assented to the execution of a deed of trust by which the company assigned his sllbscription, and those of his associates, in trust for the payment of the corporate debts, the trustee may maintain an action in his own name for the enforcement of the contract of subscription. ·
SAME-DEFENDANT CONSENTING TO ASSIGNMENT.
CORPORATIONs-STOCKnOJ,DERS-AssIGNMENT OF STOCK IN FRAUD OF CORPORATE CREDITORS-CODE VA. Cn. 57, §\§\ 26, 29.
Under sections 26, 29, c. 57, Code Va. rS-73, a subscriber to the capital stock of a joint-stock company cannot, by an assignment of his shares to a stranger, rid himself of his original liability to pay his subscription. An assignment to a corporation, by a subscriber to the capital stock. of part of his shares in payment of an assessment, and an acceptance of such transfer by the board of directors, are ultra vires, and void as against a trustee of the company under a deed of assignment for the benefit of corporate credo itors.
SAME-TRANSFER OF STOCK TO COMPANY TO PAY ASSESSMENT.
Assumpsit. Demurrer to declaration and instructions to the jury. The National Express & Transportation Company was incorporated by the legislature of Virginia in December, 1865, with a capital stock of four million of dollars, divided into shares of $100 each, payable, after an initial installment, as might be called for by the president and directors. Becoming embarrassed, on the twentieth Sep1lember, 1866, it executed a deed of trust, assigning all of its assets, including 80 per cent. of unpaid stock, to trustees for the payment of its debts. In 1871 a creditors' bill was filed in the chancery court of Richmond, Virginia, against the company, the directory, and the trustees, to enforce the execution of the trust. Such proceedings were had that by a decree entered on the fourteenth December, 1880, a large indebtedness was established against the company; the deed was constrned to pass all of the assets, for the payment of all of the debts, but not to pass the power of making calls upon the unpaid subscriptions; the old trustees were removed, and John Glenn, the present plaintiff, substituted in their place; a call was made of 30 per cent. upon the capital stock and stockholders, as necessary and proper for the payment of the debts; and the stockholders, their legal representatives and assigns, were ordered severally to pay the amount of the call to the said trustee, who was authorized to collect the same by suit 01' otherwise, but was not to act until he had executed a bond conditioned
lSee Gler.n v. Walker, 27 Fed. Rep. 677; Glenn v. Williams, 60 Md. 93; Glenn v. Saxton, (Cal.) 9 Pac. Hep. 420.