The Paper Company v. Waples. ments of five dollars each, mentioned in said third section, making a total of forty per cent of the stock subscribed. The suit was to enforce the payment of the remaining sixty per cent of the stock for the benefit of the creditors of the corporation. No meeting of the stockholders had ever been held to give their assent to the calling in of the unpaid sixty per cent of the stock subscribed, nor had such assent been given. The defense was that the sixty per cent sued for was subscribed and to be paid only according to the terms of the charter, on condition that it should not be called in unless with the assent of three-fourths of the stockholders, and then only to increase the business of the corporation, and that such assent had never been given. The district court charged the jury that there was no liability of the defendant beyond the forty per cent of his stock paid up, unless the remaining sixty per cent, or some part of it, had been called in by the assent of three-fourths of the stockholders, for the purpose of increasing the business of the corporation. This charge is assigned for error. Mr. J. Ad. Rosier, for plaintiff in error. Mr. L. Madison Day, for defendant in error. Woods, Circuit Judge. This is not the case where there has been a subscription of stock, and the by-laws or other regulations adopted by the stockholders or directors prescribe how the subscriptions shall be called in, or the charter itself declares in what installments the directors may call in the stock payments. In such a case, there can be no doubt that the entire stock subscribed, whether called in by the directors or not, is a fund for the satisfaction of the debts of the corporation, and its payment can be enforced. Such regulations only pertain to the administration of the affairs of the corporation. In this case the charter, which was required to be recorded in a public office, and published in a newspaper at the domicile of the corporation, prescribed the installments by which The Paper Company v. Waples. forty per cent of the stock subscribed should be paid, and then declared that the residue, or any portion thereof, should not be called for unless with the assent of three-fourths of the stockholders, and then only to increase the business of the corporation. The rule with regard to unpaid subscriptions of stock is this, that whatever sum is subscribed by the stockholders, and held out to the public as the stock of the corporation, is liable to be called in for the payment of its debts, even though the directors may refuse to make the call: Purton v. N. O. & C. Railroad Co., 3 La. An., 19. The power conferred upon directors to call in installments upon the shares, is a discretionary power; but that discretion. is merely modal relating to the time and manner of making payments. When the wants of the company require those payments, it becomes the duty of the directors to cause them to be made, as much so as to require payment of debts due the company. It is not discretionary with the directors to say whether or not the debts of the company shall be paid when they have the power to compel payment: Ward v. Griswoldville Man. Company, 16 Conn., 601. These doctrines are well established. Do they apply to the case in hand? It is to the charter of a corporation that reference is to be made to determine the rights of the public: Stark. Burke, 9 La. An., 341. Now, looking at the charter of the Louisiana paper manufacturing company, what was the contract which the public was advised the stockholders had entered into with the corporation? Not to pay their subscriptions absolutely, nor to pay them when, in the discretion of the directors, it might be necessary for the wants of the company. No obligation was assumed to pay any more than forty per cent of the stock subscribed, unless upon the vote of three-fourths of the stockholders, and then for a particular purpose. Clearly, as between the corporation and the stockholders, the unpaid stock above forty per cent could not be called in except on the terms prescribed by the charter. The public, the creditors of the corporation, are in no stronger position than the The Paper Company v. Waples. corporation itself, for the charter which informed the public of the amount of the capital stock of the corporation, also gave notice that the stockholders were under no obligation to pay more than forty per cent, except on their own vote, carried by a majority of three-fourths, and for a particular purpose. If the directors had called a meeting of the stockholders to vote on the question of calling in the unpaid sixty per cent of the stock, and the stockholders had refused their assent, would it have been the duty of the directors, would they have had any power, to call it in, notwithstanding the adverse vote? Clearly not. Is their duty to call in the stock any clearer, or their power any greater because no such meeting has been called and no such vote taken? The stockholders have made their contract with the corporation, the public have been explicitly advised of its terms, and the stockholders, therefore, can only be held to perform what they have agreed to do. The company can claim no more, nor can the creditors of the corporation say they have been misled. In my judgment, the stockholders are not liable to pay the unpaid sixty per cent until the same has been called in by a three-fourths vote of the stockholders, for the purpose of increasing the business of the corporation. Such residue is not due until after such a vote, and the law of this state declares that the stockholder of an incorporated company is only liable to the company for the unpaid balance due to the company on the shares owned by him. The following authorities have been consulted, and tend to sustain the views expressed: Bur. & Mo. River Railroad Co. v. Boestler, 15 Iowa, 555; Penobscot & Kennebeck Railroad Co. v. Dunn, 39 Maine, 587; Phila. & West Chester Railroad Co. v. Hickman, 28 Pa. St., 318; Carlisle v. Cahawba & Marion Railroad Co., 4 Ala. N. S., 70. It results from these views that there was no error in the charge of the district court. Its judgment is, therefore, affirmed. The United States v. Dennee. THE UNITED STATES V. R. STEWART DENNEE ET AL. 1. Subornation of perjury is in its essence but a particular form of per jury itself. 2. An indictment for subornation of perjury must aver that the defend ant knew that the testimony which he instigated the suborned wit ness to give was false, and that in giving such testimony the witness would willfully and corruptly commit the crime of perjury. INDICTMENT for subornation of perjury. Heard on demurrer. The indictment contained two counts. The first alleged the pendency in the United States court of claims, of a suit brought by one Harriet Mills, who claimed to be a loyal citizen of the United States, against the United States to recover from the treasury the proceeds of one hundred bales of cotton which she alleged were her property, and which were taken in August, 1874, by the United States military forces, turned over to the officers of the treasury department, and afterwards sold and the proceeds amounting to $40,000, paid into the treasury of the United States, and that said court had jurisdiction to pass upon said claim; that on May 10, 1875, at the city of New Orleans, the defendants, R. Stewart Dennee, lawyer, and Samnel Gamage, yeoman, "unlawfully, corruptly, wickedly and maliciously did solicit, suborn and instigate and endeavor to persuade, and did then and there suborn, instigate, and procure one Martha L. Knight to appear before one Robert II. Shannon" United States circuit court commissioner, authorized by law to administer oaths, etc., " and did then and there wickedly and corruptly instigate and procure the said Martha L. Knight to give evidence and her deposition in said issue, * * and upon her corporal oath, duly administered according to law, to falsely swear and give evidence to certain matters material and relevant to the said issue, and to matters therein and thereby put in issue to the effect following, that is to say:" The first count of the indictment then set out certain questions and the answers thereto, given by the said Knight, which was followed by a traverse of the truth of each and every answer given by her as set out in the indictment. The count then concluded as follows: "Whereas in truth The United States v. Dennee. and in fact she, the said Martha L. Knight, on or about, or concerning the matters touching which, she in her said deposition, did declare and testify had no knowledge or belief of the truth thereof in so far as any and all matters by her sworn to, stated and deposed as aforesaid in her said deposition aforesaid, were or are material to the issue so joined in the said court of claims as aforesaid, there and then at no time when she did so swear, depose and her evidence give as aforesaid contrary to the form of the statute, etc." * * The second count set out in substantially the same manner as the first the pendency and nature of the suit of Mills against the United States in the court of claims, the jurisdiction of the court over the cause, and then proceeded to aver that the defendants, at New Orleans, on the 10th day of March, 1875, "did unlawfully, corruptly, wickedly solicit, suborn and instigate, and endeavor to persuade, and did then and there suborn and instigate and procure one Martha L. Knight to appear as a witness in said cause,. * and did so wickedly and unlawfully, as aforesaid, cause and procure the said Martha L. Knight then and there * to appear before one Robert H. Shannon" who was a commissioner of the United States circuit court, authorized to administer oaths, "and did then and there wickedly and corruptly instigate and procure the said Martha L. Knight to give evidence and her deposition in said issue, * * and to falsely swear and give evidence to certain matters material and relevant to the said issue" to the effect following, that is to say. Then followed a statement of certain questions propounded to the said Martha L. Knight, and her answers thereto under oath and a traverse seriatim of each and every answer so set out. The second count then concluded with the same averments as the first. The demurrer was based on the alleged ground that the indictment did not set out any offense against the laws of the United States. Messrs. W. H. Hunt, John Ray and F. W. Baker, for the demurrer. Mr. John H. New, assistant United States attorney, contra. |