Court of Common Pleas of Montgomery County. MONTGOMERY WEB CO. VS. DIENELT & EISENHARDT. A private corporation may lawfully dispose of its assets without the assent of all its creditors, there being no actual fraud intended. The verdict in this case having established the bona fide of the sale, the property in the hands of the purchasers can not be lawfully seized and taken by the creditors of the corporation by virtue of an execution against such corporation. MOTION for a new trial and for judgment non obstante veredicto. Louis M. Childs, Esq., for defendants. The facts are sufficiently set forth in the opinion of the court. delivered December 3, 1888, by WEAND, J. In this case the court submitted to the jury the question as to any fraud in the sale to plaintiffs, and that question is therefore dis-. posed of by the verdict in favor of plaintiffs, which establishes the bona fide of the transaction as a matter of fact. There still remains, however, the question of law as to the right of the Avonia Fabric Co. to dispose of its property without providing for the claim of de fendants. The facts upon which the question arises are embraced in the point reserved, viz.: “The Avonia Fabric Co. being indebted to Dienelt & Eisenhardt sold this property to the Montgomery Web Co., a corporation among whose stockholders were also stockholders in the Avonia Company. The stock in the old company was taken by the Montgomery Web Co. as payment of shares of the stockholders of the Avonia Company, who then became members of the new company. All the creditors of the Avonia Company, except Dienelt & Eisenhardt, either agreed that the new company should, assume payment of their claims or had their claims paid by said company." This point raises the question as to whether a private corporation can lawfully dispose of its assets without the assent of all its Web Co. vs. Dienelt & Eisenhardt. creditors, there being no actual fraud intended. The act of 1874, under which the Avonia Company was incorporated, gives them the right to hold, purchase and transfer such real and personal property as the purposes of the corporation require, not exceeding the amount limited by its charter or by-law. The Avonia Company sold its personal property to plaintiffs, and paid or settled with every creditor except defendants, whose claim at that time was disputed. Having subsequently obtained judgment on their claim they levied on the property thus sold or assigned, and claim to have a lien thereon because the transaction as to them was fraudulent in law. We fail to see the force of this reasoning. Certainly an individual could have done the same thing without violating any principle of law, and we can see no good reason why a corporation acting in good faith may not also do so. It is, however, said that "while an insolvent debtor may make an absolute sale of his property in payment of his debts, he can not reserve any portion of the property or its proceeds for his own benefit and advantage": Bentz vs. Rockey, 69 Penna. St. R., 71. Granting this proposition, it does not warrant the contention here. If any of the stockholders of the Avonia Company have been benefited by the transaction, they may be liable for this claim or their interests in the new company attached; but we are slow to believe that the omission of a single creditor from what is otherwise a perfectly fair transaction will render the whole void and subject the property in the hands of innocent parties liable for the debt. If this position is correct, then at no time could the stockholders dispose of their plant or stock without first being absolutely sure that every dollar of its debt was paid, which might render the sale and transmission of their assets or stock in trade almost impossible. That some of the stockholders of the Avonia Company took pay in stock of the other company does not in my view of the case alter the rule which allows a disposition of property in good faith. Here nothing was done secretly, and the jury have found in favor of the bona fide of the transaction, which distinguishes the case from those where actual fraud was intended or a secret trust created. From the testimony it does not appear that the Avonia Company was insolvent. In 7 Gray, 393, it was held that "the directors of a manufacturing corporation, as the best means of continuing the business and Dettra vs. Elder. pursuant to the votes of a majority of the stockholders, though against the protest of a minority, may sell the whole property of the corporation to a new corporation, taking in payment in shares of the new corporation, to be distributed among those of the old stockholders who are willing to take them." See also Sargent vs. Webster, 13 Met., 504. We have not lost sight of the principle that “equity regards the property of a corporation as held in trust for the payment of the debts of the corporation, and rcognizes the right of creditors to pursue it into whosesover possession it may be transferred, unless it has passed into the hands of a bona fide purchaser”: Railroad Co. vs. Howard, 7 Wallace, 392. But here the verdict has established the bona fide of the transaction, which ought to protect, this property in the hands of the stockholders of the Web Company and of the other creditors of the Avonia Company who settled their claims by taking stock in the Web Company. If the stockholders of the Avonia Company, by reason of their connection with both companies or by reason of any advantage which they have gained by this proceeding, have violated any rule of law as trustees for creditors, they can be made. amenable in other ways; but we think the defendants had no claim upon this particular property. And now, December 3, 1888, the motion for a new trial and for judgment non obstante veredicto are overruled, and judgment, is directed to be entered in favor of the plaintiff on the verdict of the jury. A. B. DETTRA VS. IDA ELDER. The plaintiff may amend his form of action to conform to the requirements of the act of May 25, 1887. In an action of trespass for slander the defendant will be discharged upon common bail unless an affidavit is filed by plaintiff setting forth the cause of action. RULE to quash writ. RULE to show cause why defendant should not be admitted to 'common bail. Theo. W. Bean, Esq., for plaintiff. Geo. N. Corson, Esq., for defendant. The facts are fully made known in the opinion of the court delivered September 17, 1888, by SWARTZ, P. J. This action was brought May 25, 1888. The præcipe directs the Prothonotary to issue capias in case. Dettra vs. Elder. fendant to answer in "an action of trespass on the case." The act of May 25, 1887, provides that all damages heretofore recoverable in trespass, trover or trespass on the case, shall hereafter be sued for and recovered in one form of action, to be called an “action of trespass." The præcipe should have called for an "action of trespass"; the action of trespass on the case no longer exists. The defendant entered her appearance after service was made; and we will allow the plaintiff to amend by changing his form of action, and bring himself within the act of May 25, 1887. This is in conformity with the practice of other courts where like motions were entered: Noll vs. Crosscup, 3 C. C. R., 431. There amendments are allowed because oyer of the writ is no longer demandable. A defendant duly served can not object to the form of the writ; he is confined to his objections to the declaration or statement which takes its place: 1 Chitty on Pleading, 431, 450. Our rule of court provides that "no bail shall be required in actions for slanderous words unless an affidavit be made and filed before the issuing of the writ." The affidavit in this case is the usual one filed where an action is brought for slanderous words. It sets forth that "the above suit is not instituted for the recovery of any money due upon any judgment or decree founded upon contract, or due upon contract express or implied, or for the recovery of any damages for the non-performance of any contract." The affidavit states that the action is not brought for any of the above purposes, but fails to disclose for what purpose the suit is brought. Whether such an affidavit is sufficient to hold the defendant to bail is doubtful, for bail is not demandable of course in slander: Jack vs. Shoemaker, 3 Binn., 285. The plaintiff makes no answer to the rule to show cause why defendant should not be discharged on common bail; and where the affidavit fails to show special damage, or where the words do not charge a crime of a gross nature, the defendant is entitled to such discharge upon common bail: Scott vs. Crum, 1 Pears., 196. And such discharge will be ordered even after bail is entered with the Sheriff: Morrison vs. Gardner, 39 Leg. Int., 22. And now, September 17, 1888, the rule to quash writ is discharged and leave is given to plaintiff to amend his suit so as to bring himself within the provisions of the act of May 25, 1887, and the defendant is discharged upon common bail. JOHN U. ISETT VS. ISAAC BROOKE. The constructive acknowledgment of a debt arising from part payment within six years before suit brought, is sufficient from which to infer a promise to pay; but no such inference can be made until the part payment on the claim is clearly established. The proof in this case held to be insufficient to show a part payment on the due bill in suit. James B. Holland and E. L. Hallman, Esqs., for plaintiff. Montgomery Evans, Esq., for defendant. The facts sufficiently appear in the opinion of the court delivered January 7, 1889, by Swartz, P. J. The parties to the above suit agreed to dispense with a jury trial, and the case was submitted to the court for decision as provided by the act of 22d April, 1874, P. L. 109. The plaintiff sues upon a due bill payable to him, dated October 4, 1880, for four hundred dollars, and made by Brooke & Isett. Brooke & Isett were partners in the butchering business, and on October 4, 1880, Brooke took of the moneys of the firm four hundred dollars, and gave Isett the due bill in suit. The partnership was formed in 1879 and continued to January 1, 1881, when it was dissolved by mutual consent. According to the testimony of Brooke, and upon this point there is no dispute, Isett became a member of the firm by buying out the interest of Samuel D. Bean, the former partner of Brooke; and upon the dissolution in 1881 Isett agreed to accept from Brooke the money so paid in by him to Bean with interest at six per cent. upon said sum during the continuance of the co-partnership, Brooke to assume all the liabilities of the firm and receive all its assets. This money was paid to Isett, who gave a receipt which sets forth that said sum is "in full for my entire interest and claim in all accounts, goods and claims whatsoever of the firm of Brooke & Isett. The defendant claims, first, that the due bill is barred by the statute of limitations, and secondly, that the due bill was paid by the settlement made and executed upon the dissolution of the firm. The plaintiff claims that he purchased from defendant a sewing machine in 1882, and that the price of the machine was by agreement of the defendant to be charged against the plaintiff in the settlement to be made with defendant. |