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See, further, the following cases, which we have also examined: Regina v. Smith, 33 Eng. L. & Eq. 567; Vandermark v. People, 47 NIL. 122; Callahan v. State, 21 Ohio St. 306; State v. Beaver, 5 Harr. (Del.) 508; State v. Malcolm, 8 Iowa, 413; Regina v. Jones, 9 Car. & P. 109; Regina v. Bourdon, 2 Car. & K. 366; Dunaway v. People, 110 Ill. 333; 51 Am. Rep. 686; Conn v. People, 116 Ill. 458; Kunkle v. State, 32 Ind. 220; Perry v. People, 14 n. 496; Rex v. Howlett, 7 Car. & P. 274; McCoy v. State, 8 Ark. 451; Cole v. State, 10 Ark. 318; Lacefield V. State, 34 Ark. 275; 36 Am. Rep. 8; Scott v. State, 49 Ark. 156; Trevinio v. Stato, 27 Tex. App. 372; Moore v. State, 18 Ala. 532; Allen v. State, 52 Ala. 391; Meredith v. State, 60 Ala. 441; Crawford v. State, 86 Ala. 16; Lawrence v. State, 84 Ala. 424; Lane v. State, 85 Ala. 11; Ogletree v. State, 28 Ala. 693; Morgan v. State, 33 Ala. 413; People v. Scott, 6 Mich. 287; Walker v. State, 8 Ind. 290; Smith v. Commonwealth, 100 Pa. St. 324; State v. Meadows, 18 W. Va. 658. At the common law, in all cases where an assault with intent to do great bodily harm, or to kill or to murder, is charged, the intent with which the assault was made is always left by the English courts to the jury to determine: See the cases cited above. The rule may be said to be not only general, but universal; and however reluctant we may be to grant a new trial in this case, on account of the evidence as set out in the record, the sense of duty and obligation on our part to the law com pels us to do so.
ASSAULT WITE INTENT TO KILL - To constitute the offense of an assault with intent to commit murder, a specifio iutent upon the part of the accused to take life is necessary: People v. Mize, 80 Cal. 42. And the specific intent to kill must be established to the full satisfaction of the jury: Wood v. State, 27 Tex. App. 393; Hall v. State, 9 Fla. 203; 76 Am. Dec. 617; Maher v. Peo. ple, 10 Mich. 212; 81 Am. Dec. 781; Simpson v. State, 59 Ala. 1; 31 Am. Rep. 1. But in Smith v. State, 88 Ala. 23, it is decided that the specific in. tent to tako life is not an essential ingredient of the offense, known as an assault with intent to murder. The intent to produce death is usually mani. fested by the use of a deadly weapon, although the crime may be committed without the use of such a weapon: Monday v. State, 32 Ga. 672; 79 Am. Dec. 314; but the law does not presumo an intent to kill from the mere uno of a deadly weapon, such as a loaded pistol: People v. Mise, 80 Cal. 42; Scott v. State, 49 Ark. 156; Stato v. Hickam, 95 Mo. 322; 6 Am. St. Rep. 54, and pote. Yet the more fact, unexplained, that the accused was unlawfully armed with a deadly weapon is a strong circumstance tending to show that ho was actuated by malice, whore ho is charged with an assault upon tho prosecuting witness with intent to murdor him: Steffy v. People, 130 III. 98; Trevinio v. Slate, 27 Tex. App. 372; Wood v. State, 27 Tex. App. 393; Crawa
ford v. State, 86 Ala. 16. In a prosecution for an asyaalt with intent to commit murder, the refusal of an instruction that the defendant might be convicted of a simple assault is proper, when the evidence shows that the Assault consisted in shooting a pistol at the prosecuting witness People v. Madden, 76 Cal. 621.
HOWARD V. GLENN.
(85 GEORGIA, 238.) CORPORATIONS — STOCKHOLDER, WHEN BOUND BY DEOREK - A decree of .
court of competent jurisdiction in an action against a corporation by its creditors is binding upon a stockholder of such corporation, although he is a non-resident and not personally served with process, and though he
never appeared or had notice of such suit. CORPORATIONS — JURISDICTION OVER NON-RESIDENT STOCKHOLDERS. -A
trustee appointed by the decree of a court of competent jurisdiction to maintain suit for the anpaid stock subscriptions to a corporation may sue non-resident stockholders who were not personally served with process, and who had no notice of the suit in which such decree was
rendered. CORPORATIONS FRAUD OF CORPORATION NOT AVAILABLE AS DEFENSE TO
STOCKHOLDER. — In an action by creditors of a corporation to collect unpaid subscriptions by a stockholder, the defense of fraud on the part of the corporation in inducing the stockholder to subscribe is uderail
able. CORPORATIONS - LIABILITY OF STOCKHOLDER FOR UNPAID SUBSCRIPTIONS
- A plea that a decree upon which suit by creditors to collect unpaid stock subscriptions to a corporation is based, provided that if the stock. holders should pay a certain per cent upon their subscriptions within a certain time, this would be sufficient to pay off the indebtedness of the corporation, is not available to such stockholder if it fails to allege that he paid or offered to pay such per cent on his unpaid stock sub
scriptions. CORPORATIONS — LIABILITY OF STOCKHOLDER FOR UNPAID STOCK SUBSCRIP
A stockholder of a corporation is liable to its creditors upon his unpaid stock subscription, and the fact that other stockholders may have been released as to their subscriptions by a decree of court is no
defense to him, anless such action increased his liability. CORPORATIONS - CHANGE OF NAME OF CORPORATION WILL NOT RELIEVE
ADMITTED STOCK SUBSCRIBEB therein from liability to the creditors of the corporation for the amount remaining due on the stock subscribed
by him. CORPORATION-BOOKS AS EVIDENCE OY STOCK SUBSCRIPTION. — In an action
by the creditors of a corporation to recover the amount due by : sube scriber to its stock, proof that the corporation to the stock of which such stockholder admittedly subscribed is the same as that in the name of which suit is brought makes the books of such corporation admissible as evidence as to the amount and value of his subscription, or of any other
transaction between him and such corporation. PRACTICE — ADMISSION BY PLEA AS EVIDENCE. A plea bearing on the main
issue in the case, and containing an admission by defendant calculated
to damage his case, has the effect of making sach admission evidence
against him upon the trial of any other plea in the same case. PRACTICE — ADMISSION BY PLEA, WHEN ADMISSIBLE AS EVIDENOB. —
In an action by the creditors of a corporation to recover from a stock. holder therein the amount of his unpaid stock subscription, the main issue being whether or not he was a subscriber, and one of his pleas ad. mitting that he did sabacribe to the stock of a corporation proved to be the same as that in the name of which suit is brought, such admission can be used as evidence against him in the trial of the other pleas. F. H. Miller and W. K. Miller, for the plaintiff in error.
Calhoun, King, and Spalding, and C. H. Cohen, for the de fendant in error.
BLANDFORD, J. At the appearance term the defendant filed a motion a dismiss the plaintiff's declaration, on the ground that he failed to annex a copy of the written terms of subscription, and copies of the proceedings referred to in his declaration, with a copy of the call for the enforcement of which this action was brought. Subject to this motion the defendant pleaded, - 1. That the National Express and Transportation Company was not, on the fourteenth day of December, 1880, a body politic and corporate, as alleged in the plaintiff's declaration; 2. That the plaintiff is not a legally appointed trustee, and authorized to institute this action by virtue of his appointment; 3. That if the defendant ever subscribed to stock, it was to the National Express Company, whose charter was amended without the knowledge or sanction of this defendant; 4, 5, 6. The statute of limitations. When this case came on to be tried, the court ordered these pleas stricken, and overruled the motion to dismiss the plaintiff's declaration.
1. In our opinion, the plaintiff's declaration set forth a cause of action against the defendant. The declaration substantially alleged that Howard was a subscriber to the National Express and Transportation Company for fifteen shares of its capital stock, amounting to the sum of fifteen hundred dollars; that this company, having become insolvent, made an assignment to certain persons as trustees; that certain creditors of this company filed a bill in the city court of Richmond, upon which there was a decree rendered, praying that the defendant in error, Glenn, should be appointed a trustee, with authority to sue and collect from the corporators of the National Express and Transportation Company a certain assessment and call made upon them by the decree of that court. The officers or persons representing the National Express and Transportation Company were made parties defendant to that bill. We think, so far as Howard had any interest in this company, that he was represented by the corporation in that case, and that he was bound by the decree rendered in the same (it being rendered by a court of competent jurisdiction), notwithstanding that Howard may at the time have been a citizen of Georgia, and may not have been served with any process in that case. So we think the court did right to overrule the demurrer of defendant to the plaintiff's declaration. We think, also, that the pleas, 1, 2, and 3, and 4, 5, and 6, were properly dismissed, on demurrer, by the court. We think that Glenn was duly appointed a trustee, and as such had a right to bring this suit; and that if the defendant subscribed to stock in the National Express Company, although the charter may have been amended without his knowledge or sanction, so as to make it the National Express and Transportation Company, this did not relieve the defendant from any liability to pay up his unpaid stock, this not being such a material alteration of the charter as would relieve the defendant, Howard. And this court held, in Glenn v. Howard, 81 Ga. 383, 12 Am. St. Rep. 318, in this same case, that the statute of limitations did not apply to the same.
2. We think there was no error of the court in holding that the first plea of the defendant in this case was insufficient in that it alleged that the action brought by the plaintiff did not set forth the outstanding creditors for whose benefit the same was instituted, the decree of the court in Virginia having set forth such creditors; and we hold that that decreo was binding on the defendant, Howard, as to all matters therein contained, if he was a corporator in the National Ex. press and Transportation Company.
3. It is alleged as error that the court erred in striking the second plea of defendant, that the decree of the chancery court of the city of Richmond of December 14, 1880, set forth in the petition, was not such a contract of record as was binding upon him personally for any purpose, in that the court was without jurisdiction over him as a resident citizen of the state of Georgia, who was never served with process therein, who never appeared, or had notice thereof until the institution of this suit. We think that when the corporation was sued at the instance of creditors, and was duly served, Howard was bound as a corporator by any proceedings in that case, and that there was no error in striking the second plea.
4. We think the third plea was also properly stricken by the court, inasinuch as we think that whatever fraud may have been committed by the corporation would not operate to defeat an action by the creditors of the corporation, however it might be as between the corporation and a corporator. Persons who gave credit to this corporation would not be bound by any fraud between the corporation and the corporators. As between the corporation and a corporator, such defense may or may not have been good; but as between a trustee appointed by a court to bring suit and collect the unpaid subscriptions of a corporator, no such defense could be made.
5. We think the fourth plea was properly stricken on demurrer, in this, that while it alleged the decree of the court in this case in Virginia, to the effect that if the stockholders should pay a certain per cent upon their subscriptions within a certain time, this would be sufficient to pay off the indebtedness of the company, the plea did not allege that there was any tender or offer on the part of defendant to pay under that decree, within the time therein prescribed, the amount prescribed to be paid. To avail himself of that decree, the defendant should have paid, or have offered to pay, the amounts specified in the decree. No such allegation appears in this plea, and therefore it was properly stricken.
6. It is complained that the court erred in striking the fifth plea, or so much thereof as alleged that the subscription was induced by fraud, and is void for false and fraudulent representations made, and for the fraudulent suppression of material facts concerning said company; the court allowing the words to stand in said plea, that defendant at no time became a subscriber to the National Express and Transportation Company; that he did sign a paper subscribing to the National Express Company for fifteen shares of the capital stock. Whether Howard became a stockholder in this com. pany by subscription which was induced by fraud practiced upon him or not, if he did become a stockholder in said company, he is liable to the creditors of the company for so much of his unpaid stock as might be necessary to pay the company's debts, taken in connection with the other corporators of the company.
And whether fraud was practiced upon bim or not would make no difference as to the creditors; it would be a question between him and the corporation, with which the creditors had nothing to do. So we think the court