(which corresponds with the eleventh section of the act of 1875) states simply that the certificate shall state the place or places where the business of such company is to be conducted, and the objects for which the company shall be formed; while the later act of 1875 states, "the place or places in this state or elsewhere" where the business of the company is to be conducted. Then the act of 1849 does not provide that the certificate may contain any limitation upon the powers of the corporation, etc. It does provide for an increase of the capital stock, precisely as does the act of 1875; and the twenty-second section of the older act is substantially the same as the thirty-third section of the act of 1875, except that it does not contain the words, "except where otherwise provided in the cer tificate of incorporation," and the other words, "and in all cases by unanimous consent of the stockholders." The privilege given to the promoters of the corporation to limit its powers, etc., by inserting a clause for that purpose in the original certificate, and the exception against altering such certificate by a majority of two-thirds, found in the thirtythird section of the act of 1875, are first found in that act.

I am of the opinion that the contention of the counsel for the defendants in this behalf is correct, and that the designation of the place where the business should be carried on, provided for in the second subdivision of the eleventh section of the act of 1875, does not, when expressed in the ordinary way, in obedience to the command of that section, amount to a limitation upon the powers of the corporation, such as is provided for in the fifth subdivision of the eleventh section, and such as forms an exception to the power to change by the consent of two-thirds given by the thirty-third section. I think that the words, "except where otherwise provided in the certificate of incorporation,' refer to and can only be satisfied by some express provision in effect forbidding a change in the nature of the business except by unanimous consent, and such limitation is not to be implied from a mere compliance with the mandate of the statute to state certain matters in the certificate. To hold the contrary, namely, that the ordinary clauses inserted in obedience to the mandate of the statute, and forming the contract between the parties, can amount to a limitation such as is provided for in the fifth clause of the eleventh section, and operate to prevent the action of two-thirds under the thirty-third section, is to prevent any alteration in that instrument except by the unanimous consent of all the stockholders, and so reduce that section to a mere nullity, and render it inoperative in every case. But the complainants answer to this position that the thirtythird section does not provide for any change in the place where the business shall be carried on, but only for a change in the nature of the business, and that there was here, by

the certificate of February 1, 1897, no provision for any "change in the nature of the business," such as is contemplated by section 33 of the act of 1875. Counsel who opened the argument for the complainants contended that the business which the corporation carries on out of this state is precisely the same business which it carried on previous to February, 1897, in the state. This is true, as shown by the answer and evidence, of the business of smelting zinc ores carried on at South Bethlehem, Pa., in the plant of the Lehigh Zinc & Iron Company; but it is doubtful if it is strictly true of the business carried on by the Mineral Point Zinc Company, or by the plant of the old-now extinct-Florence Zinc Company. At the Mineral Point Works they manufacture spelter out of ordinary ores which they do not mine, and at Florence they manufacture high grade oxide of zinc from spelter which they do not even manufacture. And, turning to the original certificate of 1880, I find that the objects of the company are stated to be: "The mining of zinc and iron ores, and other ores and mineral substances, and the manufacture and sale of the products of such ores and minerals." If the force of the word "such" is to confine the company's operations to reducing the ores mined by it, then the work done at Florence, and also that at Mineral Point, is, upon a strict construction, not within the statement in question. These manufacturing processes were never carried on, as I understand the pleadings and evidence, by the New Jersey Zinc & Iron Company; so that there is nothing in the circumstances of the case to relieve the statement in the certificate from the rather strict construction which I have just suggested. If I am right in this view, then there can be no doubt that the works carried on out of the state at the places just named are, in effect, a change in the nature of the business, and so, manifestly, within the scope of the thirty-third section, and hence authorized by the new certificate. This would leave the only matter to be considered the reducing works at Bethlehem. Be that as it may, to this position of complainants, however well taken, the defendants answer: If there has been no change in the "nature of the business," there has been no breach of the stockholders' contract, for the place of the business so to be carried on was not, so they contend, a material or essential part of that contract. In answer to this, complainants rely upon what was said by Vice Chancellor Emery in the case of Stickle v. Cycle Co., reported in 32 Atl. 708. In that case the defendant corporation had been formed after the passage of the act of May 9, 1889 (P. L. p. 412), which is an amendment of, but does not materially alter, the fifteenth section of the act of 1875. certificate stated: "That the place in this state where the business of such company is to be conducted is the borough of Rockaway,

The

in the county of Morris. The objects for which the company is formed are the manufacture of bicycles," etc. "The portion of the business of the said company which is to be carried on out of this state, in the cities of New York and Brooklyn and elsewhere, is the selling of the manufactured products of said company." Speaking of that certificate, the learned vice chancellor says: "This certificate, therefore, as to the part of the business to be done out of the state, seems to be a material part of the certificate of incorporation, to the observance of which the incorporators have a right, under this law of 1889, to hold the company and its directors, in the absence of an express provision in the contract of incorporation itself that the company may carry on, outside of the state, other portions of the business than that specified." Then, after stating that the act of 1892, passed subsequent to the incorporation of the defendant, authorized generally the company to do business out of the state, he says: "The real question is, I take it, whether, since the law of 1892, a manufacturing corporation, which, in its certificate, states that its manufacturing plant and business shall be located in this state, and that the outside business is the sale of the manufactured articles, can, under cover of this law, change materially and fundamentally the objects of the company and rights of the company and its shareholders, as stated in the certificate, by removing the manufacturing plant and business beyond the limits of the state and the protection of its laws. My present view is that it cannot, and that the removal of the plant and manufacturing business beyond the state is a change in a material object of the company, as stated in the certificate, and should be restrained until the right is determined on final hearing." In that case there had been no action taken (as has been here) by the directors with the assent of two-thirds of the stockholders to change the nature of the business. So that the question was not whether two-thirds of the stockholders might not provide for moving the works out of the state. but whether the directors could do that without such provision. But the conclusion of the learned vice chancellor, as above stated, seems to me to weaken, rather than to strengthen, the complainants' position; for it holds that a change of the place in which the business is carried on was in that case a material and fundamental change in the objects of the company; which is tantamount to holding that it is a matter which may be dealt with under the thirty-third section of the act of 1875; and in fact the counsel who closed the argument for the complainants was constrained to adopt the latter position, and contend that the reducing of ores at Bethlehem was a change in the objects and purposes of the corporation. But the case of Stickle v. Cycle Co. differs from this in another re

spect. Its certificate of incorporation stated, "The portion of the business of the said company which is to be carried on out of this state *** is the selling of the manufactured product of said company;" thus stating with precision what portion of the business was to be carried on out of the state, and by implication declaring that no other part of its business was to be so carried on. Now, turning to the original certificate of the New Jersey Zinc Company, we find the language varying from this thus: "The business of selling the manufactured products of such ores and minerals out of the state of New Jersey is to be carried on," etc., "in the city of New York." And this language, unlike that in the Cycle Co. Case, does not, by implication, declare that no other business besides selling was to be carried on out of the state. This difference seems to me quite material. Then, again, we find that case differs from the present in still another respect. The bill and affidavits upon which the motion for an injunction rested showed that the complainants were residents of Rockaway, and the owners of real estate there, and interested in advancing the general prosperity of the town, and one of them was the owner of the factory used by the corporation; so that there was room for inference that they were induced to assist in the formation of the company, and invest their money in it, for the purpose of establishing a manufacturing plant in that town, thereby deriving incidental benefit from it; and that, if the plant was moved away from Rockaway, as was threatened, they would lose the benefit of its existence there. proposition there was to move the whole plant out of the state of New Jersey to the state of Connecticut, and beyond the jurisdiction of the courts of this state. The learned vice chancellor might well hold in that case that such amotion was a material and fundamental change in the objects of the company and the rights of the company and its stockholders. I think these considerations distinguish that case from the present, where all the business which was contemplated by the original association is still carried on in the state of New Jersey. The purchase of the additional mines and mining rights in the county of Sussex is admitted to be clearly within the object and purpose of the original corporation, and the working of its mines and reducing the minerals derived therefrom to merchantable commodities is the principal object of the company. Now, it could not have been of the least consequence to the original stockholders where that working up into marketable material took place,-whether in Newark, or Camden, or Phillipsburg, or Philadelphia, or New York. They had no local interests in any particular place. The question for them was, where could it be done the cheapest. At the time of its organization this company succeeded to the rights of the old original

ownership and operation of the Bethlehem plant is of great value and importance to the corporation. It would be a positive pecuniary injury to the company to deprive it of the use of those works.

So far I have considered the case as if the New Jersey Zinc Company was directly operating these extraterritorial works by its hired agents, and have treated the machinery of the maintenance of the extraterritorial corporate organizations as a mere shell; and have not considered a powerful argument addressed to me by the defendants to the effect that the authority to purchase stock in other corporations was undoubtedly a change in the nature of its business, which is within the language of the thirty-third section of the act, and hence beyond the criticism of the counsel of complainants in that behalf, and that the ownership of the stock carried with it the right to exercise the ordinary rights of a stockholder in electing the officers of the corporation, and through them determining its policy. A part of the argument is that, while the ownership of stock in other corporations was not, perhaps, within its power in 1880, when the corporation was organized, it has been authorized by subsequent legislation in existence at the time the contract of January, 1897, was made, and that the fair purview of the thirty-third section of the act is to enable the company to change its purposes by taking on any business which is within the powers delegated by the legislature to such a corporation at the time the right is exercised. Without deciding that question, I am of the opinion, for the reasons already stated, that the amended certificate became effective to change the objects of the corporation under the thirtythird section of the act of 1875, and that it justified the ownership and the carrying on of all the extraterritorial works, and that it is immaterial whether a mere change of location is strictly within that section or not,

and that the bill must be dismissed, with costs. I will add that the amount involved In the controversy, the importance of the questions presented, and the earnestness of the counsel for complainants have induced me to give my reasons at greater length than any difficulty in the solution of those questions would warrant.

SPOTTISWOODE v. DELAWARE, L. & W. R. CO.

(Court of Errors and Appeals of New Jersey. March 14, 1899.)

BILL OF EXCEPTIONS-WAIVER-STIPULATION.

A stipulation of the parties cannot make available bills of exceptions which have been waived by the taking of a rule to show cause without reserving them.

Error to circuit court, Essex county.

Action by George Spottiswoode against the Delaware, Lackawanna & Western Railroad Company. Verdict for plaintiff on rule

to show cause discharged on compliance with order of supreme court. 40 Atl. 505. Stipulation filed that, if rule was discharged, defendant could then file bill of exceptions. Bill dismissed.

Flavel McGee, for plaintiff in error.

PER CURIAM. The court is of opinion that the rule as made by Judge Child, without reserving the exceptions, must stand. That matter is one entirely within the discretion of the judge allowing the rule, and cannot be controlled by the parties. This court cannot consider exceptions not so reserved.

JANELLE v. DENONCOUR. (Supreme Court of New Hampshire. Rockingham. July 27, 1894.)

RECORD OF BILL OF SALE-NOTICE TO CREDITORS.

1. A bill of sale, not being an instrument required by law to be recorded, a record of it is not notice of sale to the creditors of the vendor.

2. In an action against a sheriff for levying upon a kiln of brick which had been sold by the debtor to plaintiff, it appeared that the bricks, after being sold, remained in the brickyard of the vendor by permission of the vendor's wife, who had no interest in the brickyard except in remainder after her husband's death. The only act of open and visible ownership by plaintiff was the covering of the kiln by plaintiff's servHeld, that there was no such change of possession as would amount to notice to the creditors.

Trover by Joseph A. Janelle against George A. Denoncour. Judgment for defendant.

Trover for a kiln of brick attached by the defendant, as deputy sheriff, upon writs against one Morrell on November 26, 1892, and subsequently sold upon executions issued in the actions. Trial by jury. Verdict for the plaintiff. At the close of the evidence the defendant moved that a verdict be directed for him.

The motion was denied, and the defendant excepted. November 21, 1892, the plaintiff purchased of Morrell, for $1,375, "all the hard brick in the kiln situate in the brickyard in said Plaistow known as the 'Janelle Brickyard,' now occupied by me." and took a bill O sale containing the words quoted, and a statement that Morrell put him in possession of the property by delivering to him "this deed in the name of the whole." The plaintiff caused the bill of sale to be recorded in the office of the town clerk of Plaistow on the day of its date. The trade was not made at the yard where the kiln was, and the plaintiff did not go to the kiln after his purchase prior to the attachment; but his servant, by his direction, put a covering over the kiln during the intervening time. At the time of the purchase the plaintiff obtained permission of Morrell's wife to have the kiln remain in the yard until he disposed of it. The yard formerly belonged to Mrs. Morrell's father, who by will gave to Morrell the right to use and occupy the same during his life, and to

Morrell's wife the residue of his estate. There was no delivery of the property except that made by the delivery of the bill of sale, and the only actual possession the plaintiff had of the brick after his purchase and before the attachment was such as he acquired by delivery of the bill of sale, by causing the tiin to be covered, and by getting the permission above stated from Mrs. Morrell. The sale to the plaintiff was without fraud, in fact, or any secret trust.

Drury & Peaslee and Thomas Leavitt, for plaintiff. Eastman, Young & O'Neill, for defendant.

SMITH, J. The question is whether, there was such change of possession as is required to constitute a good delivery as against the vendor's creditors. The acts indicating change of ownership relied on by the plaintiff are the recording of the bill of sale in the office of the town clerk on the day of its date, permission by Mrs. Morrell that the kiln might remain in the yard until disposed of, and the putting of a covering over the kiln by the plaintiff's servant, by his direction, prior to the attachment. The bill of sale not being an instrument required by law to be recorded, the record was not notice to creditors of the sale. Mrs. Morrell having no estate in the brickyard during the life of her husband, and no possession or right of possession, her permission to the plaintiff to occupy it was of no more effect than that of any stranger to the title. Morrell was tenant for life of the brickyard, remainder in his wife. The bricks were manufactured in the yard, and were in the kiln when sold to the plaintiff. His act in permitting His act in permitting them to remain on the land of the vendor after a reasonable time for removing them, without the exercise of visible acts of ownership, was a leaving of them in the vendor's possession. There remains the fact that the plaintiff, by his servant, after his purchase, and before the attachment, put a covering over the kiln. This was the only act of open, visible ownership exercised by the plaintiff. The trade was not made at the yard, and the plaintiff did not personally go to the kiln before the attachment. It is manifest there was no such visible and notorious change of possession as would amount to notice to creditors of a change in ownership. Judgment for the defendant.

CHASE, J., did not sit. CARPENTER, J., dissented. The others concurred.

and an absent party cannot complain if instructions are given to the jury in his absence.

Exceptions from Rockingham county. Action by Joseph Rizzoli against Charles Kelley and George L. A. Kelley. From an order denying a motion by plaintiff to set aside a verdict for defendants and grant a new trial, plaintiff excepts. Overruled.

Case for personal injuries. Trial by jury. Verdict for the defendants. The plaintiff moved to set aside the verdict, and also that a new trial be granted, because upon the request of the jury for further instructions they were brought into court, and so instructed, in the absence of the plaintiff and his counsel. The motions were denied, and the plaintiff excepted.

Thomas Leavitt and Frink & Batchelder, for plaintiff. Calvin Page, for defendants.

SMITH, J. The jury, by their own request, were brought into court, and given further instructions, in the absence of the plaintiff and his counsel. It is not stated what the instructions were, and there was no request for such statement. There is no complaint that they were not correct or applicable, but a suggestion merely that they may not have been. It was the plaintiff's right to have them stated, if he wished it; and, in the absence of such statement, it must be presumed they were correct, and such as the facts of the case called for. The additional instructions were given in open court. That this may properly be done is not an open question in this state (Ahearn v. Mann, 60 N. H. 472, 476), and in other jurisdictions. Kullberg v. O'Donnell, 158 Mass. 405, 33 N. E. 528; Chapman v. Railway Co., 26 Wis. 295. It is also matter of familiar practice in this state that written instructions may be sent to the jury without notice to counsel when the court is not in session, to be returned and filed with the verdict. Shapley v. White, 6 N. H. 172; School Dist. No. 1 v. Bragdon, 23 N. H. 507, 517; Bassett v. Manufacturing Co., 28 N. H. 438; Allen v. Aldrich, 29 N. H. 63; State v. Prescott, 67 N. H. 203, 30 Atl. 342. It is the duty of parties or their counsel to be present while the court is open until the trial is concluded. Kullberg v. O'Donnell, supra; Chapman v. Railway Co., supra. The fact that the plaintiff and his counsel absented themselves while the jury were deliberating upon their verdict did not deprive the judge of his right and duty to give such further instructions as would aid the jury in arriving at a correct verdict. To hold otherwise would put it in the power of a party or his counsel, by absenting himself, to obstruct the business of the court, and would increase the risk of a verdict founded on an imperfect understanding of the principles of law applicable to the case. Exceptions overruled.

BLODGETT, J., did not sit. The others concurred.