Evarts v. Killingworth Manufacturing Co.

Ellsworth, J. Several questions have been discussed in this case, which we have no occasion to decide ; for in one particular, we all agree, that the plea in abatement is bad, and must be overruled. The superior court found, that the acts of said manufacturing company and its officers, five days only before the service of the plaintiff’s writ, were done to “ prevent the attachment, of the company’s properly,'’ claimed to be fraudulently conveyed away from their creditors. With this finding, it is impossible to allow those acts to possess any efficacy whatever. If such a flimsy device were to receive the sanction of the court, we should lend our aid to insolvent corporations to secrete their effects from creditors. If service cannot be made, as in this case, by leaving a copy with Wm. C. Net-tleton, the late secretary, it can never be made at all. Perhaps equity might give relief; but even then, service of the writ is essential on some one ; but no other service could be made, substantially better than this which is made. We consider the secretary, who was in office up to the 15th of March, as continuing in office on the 19th, notwithstanding his fraudulent resignation, which we consider no resignation at all. Besides, were it necessary, we should probably hold, that as Nathan Griswold had then become the sole stockholder, there being, on the defendants’ hypothesis, no directors, nor secretary, nor place of business, a service of the writ on him, such as was in fact made, would be sufficient. The question of the admissibility of the recorded vote of the 19th of March, showing the resignation of the clerk, becomes unimportant, in the view we take of that transaction. We are, however, inclined to think the paper vote is admissible in evidence. No new secretary was appointed ; and if the last cannot record the acceptance of his own resignation, it cannot be recorded at all; and this admitted act of the company, can have no existence, because there is no technical proof in the record. And if, indeed, such be the case, it can avail nothing to the defendants; for if there is no proof of the acceptance of the resignation, the old secretary remains in office, and can be treated as if nothing had been done. [458] We think it proper for a succeeding clerk when there is one, to record the resignation of his predecessor; but too much technicality must not be required in this matter; for it may be asked, what is the exact time when a clerk ceases to be in office ? Is it when he resigns, or when his resignation is accepted, or after its acceptance is recorded, and so becomes complete ? It is a common practice for corporate bodies to choose a presiding officer before there is any clerk to make a record ; the clerk, when chosen, is often sworn into office, by this presiding officer ; and yet the clerk can make a record of these transactions. If, when chosen, he is present to attest what was done, or knows the truth of what he records, he may make a valid record ; and this is all that is generally required in this state. A more precise rule would be attended with much inconvenience. The further claim, that the defendants ceased to be a corporation after their vote of the 15th of March, because their charter then became extinct, by the resignation of their officers, and the omission to elect others, is wholly inadmissible. Whether mere disuse of any or all corporate power, works a determination of corporate being and corporate liability, we need not say ; though we believe it would be difficult to maintain the affirmative of the proposition. According to numerous decisions, the franchise should be formally surrendered to the legislature who gave it. In case of forfeiture, the legislature can retake it, by a judicial proceeding on a qua warranto. We advise that judgment be given for the plaintiff. In this opinion the other Judges concurred. Judgment for plaintiff.