by suit at law. It is certainly true that at law debts due to and from a corporation are totally extinguished upon dissolution, so that neither can they be recovered by it nor charged against it, and both at law and in equity all pending suits by or against thereby abate. Angell & Ames, § 779.

Where, during the pendency of a suit, a corporation surrenders its charter, which is accepted by the Legislature, it becomes defunct and the suit abates, unless the Legislature save the right of action against the corporation; Greeley vs. Smith, 3 Story, 657. And this must be equally true where the Legislature, without saving the rights of suitors, give to the courts the power to accept a surrender of corporate authority, and decree the death of the body. To the same effect is Merrill vs. The Bank, 31 Maine Reports, 57; May vs. State Bank, 9 Robinson, 56.

This is conceded by the master, who reported in favor of a dissolution, and says a technical abatement of a suit at law against the Credit Mobilier would be worked by a decree of dissolution, whilst the rights of a creditor remain in equity unaffected, as against the assets of a dissolved corporation. It is difficult to see how a suit at law can be maintained after the death of the defendant, who can make no testamentary disposition, appoint no executor, and upon whose estate no administration can be raised.

The master, however, holds that as the assets of the corporation in the hands of the trustees are held subject to any claim that may be established against them by creditors, the protection is ample. The question is asked, without being answered, may not the trustees be made parties defendant to the suit in the Supreme Court? This may be so, and yet there is room to doubt whether the suit against the corporation now pending would not abate, and the creditor be turned over to a new proceeding against the trustees.

The equity of the creditor to obtain satisfaction of his debt out of the assets of a dissolved corporation is now well established: in support of this doctrine the master cites 7 Peters, 281; 15th Howard, 304; 8 Georgia, 493; 10 Paige, 541.

He also cites from Chancellor Kent, who states the doctrine thus :The rule of the common law has in fact become obsolete; it has never been applied to dissolved moneyed corporations in England. The sound doctrine now is, as shown by statutes and by judicial decisions, that the capital and debts of banking and other moneyed corporations constitute a trust fund and pledge for the payment of creditors and stockholders; and a court of equity will lay hold of the fund and see that it be duly collected and applied.

But whether the present suit in equity can be maintained by calling in the trustees as parties defendant, after the death of the corporation, or whether a new proceeding would have to be instituted, we should pause before we make a decree that might impose on suitors against the Credit Mobilier great risk and inconvenience in the prosecution of their claims against the company. We are not to shut our eyes to the fact that all three of the trustees are citizens of the State of Massachusetts, and not therefore within reach of the process of the courts of Pennsylvania, and that a decree such as is prayed for would, to a great extent, if not wholly, deprive the exceptant and other suitors in equity from obtaining such

further discovery as they may be entitled to have in the maintenance of their demands. If dead in law, the corporation could make through its proper officers no further answer to inquiries that might be important, if not essential, to more full and perfect discovery in equity.

The master, as we have seen, asserts the general doctrine that equity will carry the effects of a dissolved moneyed corporation over to the trustees for the use and in trust for creditors. But the rights of creditors, under the act of 1856, to make claim upon the funds of the corporation in the hands of the trustees, upon accounts settled under the act, which in direct terms makes no provision for creditors, is not entirely free from doubt; the question should be settled before we enter the decree prayed for. Nor is it satisfactorily shown that the pending suit in equity would not fall dead the moment such a decree was made; nor in what way the trustees, if the suit survives, can be made parties to it, if they elect to keep beyond the jurisdiction of the court. A decree ought not to be made that would subject suitors to either one or the other of these risks, which would impose great inconvenience if suits had to be again brought, and might result in entire loss of remedy before the tribunals in which they have chosen to litigate their claims. To do that which we are asked to do in advance of the settlement of the accounts of the corporation would be to bar, in some degree, the way of justice, and impair, if we did not destroy, the remedy which the law of the land now gives to those having claims against the body.

But there is another reason why we should at least pause and at this time refuse the petitioners the death for which they pray. The law says that the court must be satisfied before entering a decree of corporate dissolution that it may be done without prejudice to public welfare. In view of recent developments, which reach us as a part of the history of the government, making inquisition into the past transaction and present standing of the Credit Mobilier of America, can any one affirm, that the dissolution of this corporation would be without prejudice to the interests of the public?

The government has given notice that it claims to be a creditor of the corporation to a large amount. Congress has by its action directed the employment of counsel to investigate and prosecute such claims. Shall we embarrass the possible future action dependent on such an inquiry, by taking from the body its very existence, and enable it to pass out of sight, by quietly descending into a grave, which by anticipation it has prepared for itself, and turn the government as well as individual creditors over to a scramble for the effects of the body?

This corporation should be compelled to continue to live and stand in its proper place until the way be made clear beyond reasonable doubt, that without prejudice to public welfare or the interests of corporators, and we may add that of creditors, we may safely give to it the death which it desires to die by our hands.

The exceptions to the report of the master are sustained, and the prayer of the petitioners is refused.

R. C. McMurtrie, Esq., for petitioners.

Thomas Hart, Jr., Samuel C. Thompson, and James E. Gowen, Esqs., for exceptant.

[Leg. Int., Vol. 30, p. 52.]

PARKER vs. SPILLIN.

Preliminary injunction will not be continued where plaintiff has slept upon her rights for years.

In equity. Opinion delivered February 8, 1873, by

PAXSON, J.-Whatever merits this case may develop upon final hearing, it is not now in a position to entitle the plaintiff to a continuance of this special injunction. The equities of the bill are flatly denied in the answer of the defendant, and but feebly sustained in the supplemental affidavits filed in behalf of the plaintiff. In addition to this the claim is stale. It is nearly ten years since the plaintiff executed and delivered the deed which she now seeks to set aside. While this lapse of time is not a bar in equity, it is nevertheless to be considered upon the question of granting the special relief prayed for. The plaintiff' having slept upon her rights for so many years, may well await the ordinary course of equity proceedings. The extraordinary powers of a chancellor are, as a general rule, reserved for the vigilant suitor. The motion to continue the special injunction is denied.

C. H. Gross and Thomas J. Barger, Esqs., for injunction.
J. B. Townsend, Esq., contra.

[Leg. Int., Vol. 30, p. 76.]

BURNS et al. vs. Cox.

An administratrix who assumes the charge of real estate will be liable to account for the highest rent that can be obtained, but she may show that she has used all possible diligence, and then she will not be charged for rent not received.

In equity. Exceptions to master's report. Opinion delivered March 1, 1873, by

PEIRCE, J.-The defendant was administratrix to the estate of her former husband, Samuel Bisbing, who died in 1858, intestate, since which time she has in part collected the rents of the real estate left by him, and occupied a portion of it herself. This bill was filed to compel her to account to the complainants, who are grandchildren of the said decedent, for their shares of said rents. Landis vs. Scott, 8 Casey, 495, decided that an executor who, without authority, assumed the charge of the testator's real estate, is liable to account to the devisees as a trustee or agent; and if he occupied a part of the real estate of his principal, that he is chargeable with the highest rent that could have been obtained for it.

An administratrix is in like manner chargeable. And the rule laid down in Landis vs. Scott is, that she is prima facie chargeable with all the rents, and can only be discharged by proof that she did not collect them, and could not have done so by the faithful exercise of due diligence, within the limits of the powers which she possessed.

The master has mainly acted on this rule in charging the defendant, but he seems to have gone somewhat beyond it in a few items of surcharge which he has made against her.

The respondent in her testimony says. "When I got the property in

1864, I found tenants in the frame house at a low rent; I notified them in the latter part of 1870 that the rent was raised for 1871, and they moved out, and the house lay idle for two months. The tenants who were in when I raised the rent left with two months' rent unpaid, and it was two months before I got new tenants in-four months' rent lost. I advertised it, and did all I could to rent it, but property out there does not rent well in winter. Wm. Bramble was the tenant who left with two months' rent unpaid. He only had one-half of the house, renting at $7. The tenant on the other side still remains; his name is John Gilfoyl." There should be a credit allowed her on account of these losses of $28.

Again, she says: "I rented the brick house up to the time I went in from 1864, to two families, for $13 a month for both, and collected all the rents except $30, which I lost, $20 from one family, and $10 from the other, upon notifying them to quit. There were no goods on the premises from which I could collect that rent, that is, over $300. I wanted $10 for the two rooms for which $5 had been paid, and $15 for the two rooms for which $8 had been paid; they refused to give it and left. I had no written lease with these tenants." She should be allowed a credit for these losses of $30.

She further says: "I went into house (brick house), April, 1867, because the house was idle and vacant; and then, after leaving, in November, 1867, I rented the house to Wm. Callahan, my brother-inlaw, for $25 a month. They stayed two months; then for a month it laid idle. Then I rented it to Mr. Miller for $25 a month, and he occupied it up to August, 1868, when I moved in again. He did not pay two months, and I had to notify him to quit. I lost the two months' rent of $50; he moved out at night and took the keys with him; part of the house was not furnished; he had some nice furniture in the parlor. He was an officer in the almshouse, and was put out and left secretly. Miller's salary was only $25 a month; he was a head nurse and had a family."

The master says: "No allowances are made for rent lost by nonoccupancy or absconding tenants, because it has not been affirmatively shown, in the cases where the defendant has particularized such losses, that she took the proper precautions to avoid these losses, her testimony showing exactly the reverse; in one instance of loss she even rented the brick house to a tenant at $25 per month, who she knew received only $25 per month."

The evidence does not show that she knew it when she rented him the house, and it is but fair to infer that she only learned it when she went to her counsel, Joseph B. Townsend, Esq., who was then a guardian of the poor, to see about collecting this rent. Besides, she had collected four months' rent of Miller, he having been in the house about six months. She should be allowed, therefore, one month whilst the house laid idle, $25, and the two months' rent lost by Miller, $50.

The defendant had the largest interest in this property herself, and the evidence certainly shows that she endeavored to increase the rents of the properties, and that some of the losses were made in her efforts to do so. It also shows efforts made to rent the property when it was vacant, and that she moved into the brick house because it was vacant.

Landis vs. Scott decides, that an accountant, such as was this administratrix, was only answerable for the exercise of due diligence, and where such was exercised that she would not be chargeable with what she was unable to collect.

The accountant should therefore be credited with the foregoing sums, amounting in the aggregate to one hundred and thirty-three dollars, which should be deducted from the net balance of rents as found by the

master.

With these corrections, the master's report will be confirmed, and the other exceptions dismissed, with costs to be paid by defendant.

Henry T. King, Esq., for plaintiffs.

E. K. Nichols, Esq., for defendant.

[Leg. Int., Vol. 30, p. 76.]

ALLEN vs. BENNERS et al.

An injunction will be granted to restrain the sale of a wife's property for the debt of her husband where her title is clear and undoubted.

Sur bill, answer and proofs. Opinion delivered March 1, 1873, by PEIRCE, J.-In Hunter's Appeal, 4 Wright, 194, the jurisdiction of a court of equity to restrain by injunction the sale of a wife's property for the debt of the husband, is put upon the ground that the acts of 1848 and 1850 declare, that the separate property of a married woman shall not be subject to levy and execution for the debts and liabilities of the husband, and that, therefore, such a case is within the fifth clause of the third section of the act of 16th June, 1836, which gives the courts jurisdiction in equity "for the prevention or restraint of the commission or continuance of acts contrary to law, and prejudicial to the interests of the community or the rights of individuals."

A clear case of title in the wife must be shown, otherwise a court of equity will not interfere, but leave the creditor to pursue his process, and the purchaser at the sale to establish his title in ejectment.

So in Winch's Appeal, 11 P. F. Smith, 424, it is said, "where the title of the wife is disputed, and where the creditor has the right to proceed against the property to test her title, it is error to assume jurisdiction, and enjoin against the creditors' execution, and thus to withdraw contested facts from a trial by jury."

It is presumed that the Supreme Court by the words, "disputed title" and "contested facts," means something more than a mere unsupported allegation on the one side, or unsupported denial on the other, but that the dispute and contest are supported by evidence that will require a trial by jury to settle the merits of the controversy between the parties.

If, therefore, the evidence is such that the court could not sustain the verdict of a jury upon it against the title of the wife, the jurisdiction of a court of equity to restrain by injunction the sale of the wife's property would be properly exercised.

The evidence in this case was given exclusively on behalf of the complainant. The defendants gave no evidence. It shows that the purchase-money of the property claimed by the wife was $3,500, subject to a mortgage of $2,500, which still remains upon the property. The