that the legislative intent was that the corporate powers of such corporation were to continue unimpaired for the space of four months after injunction and the appointment of a receiver, except so far as their exercise may have been curtailed by the powers conferred on the receiver. This was doubtless for the purpose of enabling those interested to procure the dissolution of the injunction and the removal of the receiver. After the lapse of four months the declared purpose was that certain of the corporate powers should ipso facto be forfeited, but the corporate life was to continue, for corporate powers were to continue for certain purposes, viz. for settling its affairs. By the supplement to the corporation act which was approved March 8, 1877 (Supp. Revision, 167) the eighty-third section, above considered, was amended by striking out its last clause, which provided for the forfeiture of certain corporate powers after the period of four months, and substituting in its place a provision that for all other purposes-that is, other than those set forth in the preceding exception-the chancellor might at any time declare the charter to be forfeited and void. As thus amended, the plain intent of this legislation is to continue the corporate powers of a corporation declared insolvent unimpaired, except as their exercise may be impliedly curtailed by the powers conferred on the receiver for the period of four months, and thereafter corporate powers were to continue, but only for the purpose of settling its affairs. The general rule is that a corporation is not dissolved by becoming insolvent. 2 Mor. Priv. Corp. § 1010. The "act to prevent frauds by incorporated companies," approved April 15, 1846 (Rev. St. 129), contained the provisions of most of the sections of the present corporation act respecting insolvent corporations, including the provisions for injunction and receiver. The appointment of receivers under that act was held not to put an end to the corporation. Willink v. Banking Co., 4 N. J. Eq. 377. The provisions now contained in section 83 were first enacted in 1852. Laws 1852, p. 397. After the amendment of 1877 it was held in the United States circuit court for this district that a corporation declared insolvent, and enjoined by the chancellor, and for which a receiver had been appointed, could enter an appearance to an attachment in a state court, and remove the proceeding to a federal court. Second Nat. Bank v. New York Silk Manuf'g Co., 11 Fed. 532. A like view has been taken elsewhere under similar statutes. Kincaid v. Dwinelle, 59 N. Y. 548; Pringle v. Woolworth, 90 N. Y. 502; Coburn v. Manufacturing Co., 10 Gray, 243; Johnson v. Bleaching Co., 15 Gray, 216; Taylor v. Insurance Co., 14 Allen, 353.

Looking at the whole scope of the provisions of our statutes respecting insolvent corporations, it does not seem open to question that they design to leave the corporate

powers, or some of them, in continued existence for the purpose of settling their affairs, and enabling them to resume business. This is particularly indicated by a supplėment to the corporation act approved February 26, 1878 (Supp. Revision, 160), giving any such corporation power to mortgage its property and franchises with the consent of the chancellor, when it is reorganizing its property and debts to resume its property and business. Many such corporations have in fact reorganized and resumed business. As, therefore, certain powers remained in the defendant corporation, notwithstanding the proceedings in insolvency, it follows that, because such powers must necessarily be exercised by agents, power to employ and compensate such agents must be implied. This conclusion is not inconsistent with Bissell v. Besson, 47 N. J. Eq. 580, 22 Atl. 1077. In that case Vice Chancellor Van Fleet had declared a mortgage given by an insolvent corporation to those creditors who had initiated the proceedings against it to be a nullity, both because it was made during the pendency of the insolvency proceeding and because it was in violation of the injunction. The decree was affirmed in the court of errors, but the opinion of the majority of the court voting for affirmance is not reported. I think I am correct in saying that the prevailing view was that the mortgage was in contravention of the policy of the statute which designed the equal distribution of the assets of an insolvent corporation among its creditors, whose debts, after injunction issued and receiver appointed, are charged upon those assets. Graham Button Co. v. Spielmann, 50 N. J. Eq. 120, 24 Atl. 571; Id., 50 N. J. Eq. 796, 27 Atl. 1033. The mortgage in question in that case pledged such assets for the payment of the petitioning creditor in preference to others, and was not within such powers as, upon our construction, an insolvent corporation retains. Nor need it be determined whether plaintiff could have made effectual his claim for compensation for his services, if defendant had remained insolvent, and in the hands of the receiver. Whether such compensation could be paid out of the assets may be questioned. But there can be no doubt that, if the injunction is discharged, and the receiver relieved, the corporation and its property will be answerable for such compensation.

Having concluded, then, that an insolvent corporation remains possessed of some corporate powers, and may employ agents to exercise such powers, the question is as to the effect of these pleas. The declaration does not fix the date of the rendition of the services of plaintiff. The pleas aver that the services were rendered during the continuance of the injunction and receiver, which was for many years, but do not indicate whether they were rendered during the four months next succeeding the issuing of the injunction and the appointment of the re

ceiver. If within the four months, the pleas upon the construction given the statute are no bar to plaintiff's action. But if it is to be inferred, and as is probably the case, that the services were rendered long after the lapse of the four months, the pleas are yet no answer to plaintiff's action. Their purpose is to evince the incapacity of the defendant to make the contracts sued on by appealing to the act which deprives an insolvent corporation of some of its corporate powers. But the act appealed to contains in its very enacting clause and sentence an exception whereby such a corporation retains corporate powers which are sufficient to enable it to make such contracts. Under such circumstances the pleas should have averred that the contracts sued on were not within the exception. This is the established rule of pleading when the plaintiff founds his action on a statute. 1 Chit. Pl. 206. No reason can be perceived why a like rule should not be applied when a defendant bases his defense upon a statute. For these reasons I think the pleas are defective. This result renders it unnecessary to examine the replications. Plaintiff is entitled to judgment on the demurrer.

INDORSEMENT OF NOTE - INDIVIDUAL OR CORPOR

ATE-PARTIES-PRESUMPTIONS.

1. An indorsement of a note in the following form: "J. W. Parrott, President of Long Branch Hotel and Cottage Co.," imports prima facie the personal liability of J. W. Parrott.

2. A summons and declaration naming "John W. Parrott, President of the Long Branch Hotel and Cottage Company," as the defendant, indicate John W. Parrott individually as the defendant, in the absence of evidence that the company is suable in the name of its president.

(Syllabus by the Court.)

Action by Henry S. Terhune against John W. Parrott and others, in which there was a judgment for plaintiff. On motion to set aside the judgment. Rule to show cause discharged.

Argued June term, 1896, before LUDLOW and DIXON, JJ.

John W. Parrott, pro se.

DIXON, J. A summons was issued against "John W. Parrott, President of the Long Branch Hotel and Cottage Co.," and in the declaration the defendant was similarly named and described. The schedule annexed to the declaration showed that "J. W. Parrott, President of Long Branch Hotel and Cottage Co.," had become second indorser of a promissory note held by the plaintiff. No plea having been filed, the plaintiff took judgment by default, and in the rule for judgment the title of the cause designates

John W. Parrott, without any addition, as the defendant. John W. Parrott now seeks to set aside the judgment upon the ground that the indorsement created no personal liability on his part, and therefore the judg ment against him as an individual is wrong. No evidence as to the circumstances under which the indorsement was made is produced, and the motion is based solely on the matters appearing in the record. The question whether such a signature as is indorsed on the note in this suit imports a personal or a corporate liability, has been settled in this state, and the rule is that prima facie a personal liability is implied; but evidence may be adduced, even by parol, to show that only corporate liability was intended. Kean v. Davis, 21 N. J. Law, 683; Reeve v. Bank, 54 N. J. Law, 208, 23 Atl. 853. In the present case, there being nothing before us but the signature, a judgment against the individual signer was warranted by the indorsement. The summons and declaration should also be interpreted upon the same principle. Had it been shown that the Long Branch Hotel & Cottage Company was suable in the name of its president, these proceedings would be regarded as being directed against that company; but, that not appearing, the individual, John W. Parrott, must be deemed the defendant, and the addition of his title must be considered as mere description or rejected as surplusage, otherwise the proceedings quoad hoc would be nugatory. There is no incongruity in the record, and the rule to show caus? is discharged.

Acts May 25, 1894 (Laws 1894, p. 517). and March 22, 1895 (Laws 1895, p. 472), provide that, where a number of school districts are consolidated, an assessment equal to onefifth of the value of the school property in each of the old districts shall be levied upon all the taxpayers of the consolidated district, and there shall be remitted to the taxpayers of each school district as it existed on the 30th day of June, 1894, one-fifth of the appraised value of the school property belonging to said district, and yearly thereafter one-fifth shall be so assessed and remitted, until the whole appraised value is remitted. Held, that this legislation is unconstitutional. It provides for no public necessity or exigency; the tax is not to be appropriated to the expenses of government; its sole end and design is to benefit one class of citizens at the expense of another.

(Syllabus by the Court.)

Certiorari at the prosecution of the Elizabethtown Water Company and others against Lewis H. Wade, collector of Union township, to review assessments. Assessments set aside.

Argued February term, 1896, before DEPUE, VAN SYCKEL, and GUMMERE, JJ.

VAN SYCKEL, J. This case involves the question of the constitutionality of section 27 of the act of May 25, 1894 (P. L. 1894, p. 517), entitled "An act to amend an act entitled 'An act to establish a system of public instruction,' as amended by a supplement thereto approved March 22, 1895 (P. L. 1895, p. 472). Section 13 of the act of 1894 is as follows: "That the several school districts in each township shall be consolidated into one school district, and that the property, real and personal, of said several school districts, shall become and be the property of the consolidated district in its corporate capacity, and shall be held in its corporate name, and the several obligations, and debts of said districts, whether secured by bonds or otherwise, shall be assumed by and shall become the obligations and debts of said consolidated district." Section 27 provides: "That the school houses, lands, apparatus and other property owned by the school districts, hereby abolished, shall immediately after the passage of this act, be appraised, by the assessors of the several townships; in making said appraisement, the amount of debt incurred by any district for the purchase of lands, apparatus and other property, or for the erection of a school house or school houses, which debt is unpaid at the time of making such appraisement shall be deducted from the appraised value of such property; one copy of said appraisement shall be filed with the county superintendent, one copy with the district clerk of the consolidated district, and one copy with the township collector, and at each assessment for special school tax thereafter (until the whole amount is remitted) there shall be remitted to the taxpayers of each of said districts one tenth of the said appraised value of the property of the school district in which such taxpayers reside or own property; provided, that in case any such district is situated in two or more townships, the assessors of said township shall jointly make said appraisement, and shall determine the part thereof belonging to each of said townships, and each township shall remit to the taxpayers on its part of such district the part so determined, in the same manner as in case of districts wholly within a single township; and provided further, that in case any such district is situated in two or more boroughs, or partly in a borough and partly in a township, said appraisement shall be made by the several borough assessors, or by the borough and township assessors (as the case may be) in the manner aforesaid." The first section of the act of 1895 provides: "That each assessor shall include in the next assessment made by him one fifth of the total value of all the school property situate within his taxing district, as appraised as now provided by law, and there shall be remitted to the taxpayers of each school district, as said dis

trict existed on the thirtieth day of June last, one fifth of the appraised value of the school property belonging to said school district, and yearly thereafter one fifth of the value of said property so appraised as aforesaid, shall be assessed and remitted until the total appraised value of said property has been remitted; provided that in case a district lay in two or more townships or boroughs or in a township and borough, the amount ascertained as due that portion of the district lying in the township or borough which does not contain the school house shall be paid over by the collector of the township or borough in which said property is situated to the collector of the township or borough in which is situated that portion of the district which does not contain the school house, and the monies thus paid over shall be used for the repair or improvement of the school property of said township or borough." In this section, and also in section 3 of the act of 1895, as printed in the Pamphlet Laws, the word "thirteenth" is by mistake erroneously substituted for the word "thirtieth," as appears by the act filed in the office of the secretary of state.

"The theory of taxation is that it is levied for public purposes; that it is an attribute essential to the exercise of government, without which it would be powerless to discharge its functions, and for that reason it is held to be inherent. It is the public use for it which marks it as a tax. Where no public end is subserved, the power cannot be called into action." Baldwin v. Fuller, 39 N. J. Law, 576. The provision made by this legislation is that an assessment equal to onefifth of the value of the school property in cach of the old districts shall be levied upon all the taxpayers of the consolidated district, and there shall be remitted to the taxpayers of each school district as it existed on the 30th day of June, 1894, one-fifth of the appraised value of the school property belonging to said district, and yearly thereafter one-fifth shall be so assessed and remitted, until the whole appraised value is remitted. Those who were taxpayers in the old district on the 30th of June, 1894, can alone participate in the remittance from year to year. Persons who were taxpayers in such district on the 30th day of June, 1894, would be entitled to the remittance in each of the five years, although they had become such taxpayers after all the school property had been paid for by taxation of the district, and they had never contributed to the purchase of the school property. The effect of this legislation is to assess upon all the taxpayers of the consolidated district a tax equal to the value of all the school property in the several districts composing it at the time of the consolidation, and to give back to the taxpayers in each of the old districts a sum equal to the value of the school property in their district. So far as this tax is remitted, it is imposed for private use, not for any public use. No part of it goes to discharge

a public debt, or to promote a public purpose, and no part of it finds its way into the public treasury. In the most favorable view that can be taken of the law, it is levied expressly for the benefit of a selected class of persons, to reimburse them for moneys heretofore paid by them in satisfaction of taxes legally laid upon them, and appropriated to public uses. If taxes are illegally imposed, the taxing district may unquestionably be authorized to make an assessment for the purpose of restoring to the individual taxpayer the amount illegally exacted from him; but when taxes have been in all respects legally levied and collected, and appropriated to the public purposes for which they were assessed, there is no right on the part of the taxpayer to have them refunded at the expense of those who had no voice in their imposition or expenditure, nor is there any duty on the part of the government to make restitution. No right can be based upon the payment of taxes except those rights which the taxpayer enjoys in common with all persons residing in the political district in which the burden is laid. The effect of this legislation is to take by taxation the property of one part of the taxpayers, in ease of another part, for purposes to which both are alike legally liable to contribute. It cannot be justified on the theory that the taxpayers who receive the remittance are only receiving compensation for property in which they have a personal interest. Such taxpayers have no right of property whatever in the school lands and buildings to the purchase of which taxes paid by them have been applied. The school property is public property, the property of the incorporated district, and not of the taxpayers residing within it. While such persons live within the district, they enjoy, in common with others, its superior advantages; but they have no greater right in such property than a person who moves into the district after all liabilities incurred for the purchase of school property have been paid. If this legislative scheme can be upheld, there is no limitation upon the power to provide for an equalization of the public burdens, taking into account previous assessments without regard to lapse of time. By this device of assessment and remittance the inhabitants of a district annexed to a city might, at the will of the legislature, be burdened in excess of other taxpayers, until a supposed equality was established between the old and new citizens, taking into computation the amount of taxes previously paid by the former, and expended for public improvements. Such an exaction has none of the characteristics of legal taxation; it provides for no public necessity or exigency; it is not to be appropriated to the expenses of government; its sole end and design is to benefit one class of citizens at the expense of another. "Taxes must be apportioned among those who are to bear the burden upon the rule of uniform

ity. A tax upon the persons or property of A., B., and C., individually, whether designated by name or in any other way, which is in excess of an equal apportionment among the persons or property of the class of persons or kind of property subject to the taxation, is, to the extent of such excess, the taking of private property for a public use without compensation." State v. Township Committee, 36 N. J. Law, 66. In the case sub judice it is the taking of private property for private use. A present inequality cannot be established because in times past some taxpayers have contributed by way of taxation more than others to the purchase of school buildings or to other public improvements. "It is the essential character of the direct object of the tax, which must determine its solidity." Lowell v. Boston. 111 Mass. 461. In the case before us there can be no question that its primary and principal object is for private, and not for the public, benefit. In this respect it violates not only the spirit of our constitutional provision, but also general fundamental principles. The effect of the remittance is to cast the tax upon a part only of the political district without regard to the special benefits which may accrue to those upon whom it is made to fall. It must, therefore. be denounced as an illegal exercise of the taxing power. Baldwin v. Fuller, supra. In my judgment, the legislature has transcended its authority in resorting to the power of taxation for the purposes expressed in the enactments under review. This radical vice existing in the law, it is not necessary to consider whether the act of 1895 is void, because it does not set out section 27 of the act of 1894 as altered or amended by the act of 1895. The assessments should be set aside, with costs.

not have been successfully resisted; but on this demurrer the only question is whether, in this complex mass of facts, a cause of action can be discovered. In its general nature the suit is for breach of contract by the defendant in refusing to take and pay for certain personal property bid in by him at a public sale made by the plaintiff as receiver. The imputed insufficiencies of the count will sufficiently appear from the exceptions to it that are stated in the brief of counsel.

This is

The first alleged defect is that it is not shown that the agreement to purchase the goods in question was in writing, and therefore it is void by force of the statute of frauds. There are two answers to this objection, each of which is unquestionable: First, the statute of frauds is a defense, and must be pleaded to make it available in any case. It is not necessary for the plaintiff to show that the contract sued on has been executed in the manner prescribed by the act. and always has been the rule, as will appear by a reference to Chitty or any of the other text-books. And in the second place, the declaration shows that 10 per cent. of the purchase money was paid at the time of the sale, so that the transaction was excepted from the statutory requirement. This objection is destitute of all force. Another objection of the counsel of the defendant is that certain other persons were purchasers with the defendant, and that they should have been joined as parties in the action. This position relates to the statement in the count to the effect that, when the defendant made bis final bid at the auction in question, "he alleged himself to be bidding for himself" and several other persons whom he named. If the allegations of the pleading had stopped at this point, the position of the defense would have been, even then, palpably untenable, as a case of nonjoinder would have been exhibited, and such an imperfection could not have been objected to on demurrer, but only by plea in abatement, in conformity with the method appointed in the practice act. But this question is not presented in this simple form. There are other allegations in the declaration that control the inquiry. After the statement that the defendant alleged, at the time of the sale, that he made his bid for himself and certain other persons, named by him, there is an averment that, with respect to the persons so named, the defendant had no right to bind them. The legal situation thus exhibited is this: The defendant purchased the goods in question for himself and for certain other persons for whom he was not authorized to act. The result of such a transaction was that no one was bound by the contract but the defendant, and under such conditions it seems to be the better view that he can be sued for a breach of the agreement, inasmuch as by the form of the transaction he has charged himself. Woodes v. Dennett, 9 N. H. 55; Savage v. Rix, Id. 263. With respect to the third and

last exception to the count, that it does not show that the conditions of sale, which are set out in extenso, were in any manner promulgated or made known to the defendant, it is sufficient to remark that, in respect to the present cause of action, so far as appears, these conditions of sale are of no account. If there were no express conditions, the defendant as purchaser was bound to pay the stipulated price, and upon failure to do so the chattels could be resold by the vendor, and these are the facts constituting the gravamen of the action as it is shown upon the record. In the opinion of the court, none of these objections can prevail.

Nevertheless, two imperfections have been perceived in the statements of the plaintiff's grounds of suit which appear to have escaped notice, and which must be pronounced to be fatal to the plaintiff's case. One of these defects is that, while the plaintiff presents himself in court demanding of the defendant the residue of the price of the goods sold, he altogether fails to show that on his part he has done, or has been ready to do, the act that alone entitles him to make such demand. The declaration touching this subject thus states the reciprocal duty of the vendee and vendor: It avers: "The ninety per cent. above referred to, to be paid at the office of No. 1. Exchange Place, Jersey City, New Jersey, on the 19th day of December next at twelve o'clock noon, when the goods will be delivered," etc. From this it is manifest that the payment of the money by the defendant and the delivery of the goods by the plaintiff were to be simultaneous acts, and, when such is the situation, the familiar rule, as stated by Lord Kenyon, in Morton v. Lamb, 7 Term R. 125, is: "The party who sues the other for nonperformance must aver that he had performed or was ready to perform his part of the contract." In the present pleading there is no allegation even tending to indicate that the plaintiff attended at the time and place appointed, or that he was ready or willing to have delivered the things sold if their price had been tendered to him. Consequently no right of action is here shown. The other defect alluded to is that, from the statements of this declaration, it appears that the plaintiff made a resale of the goods sold before the day fixed for their payment by the defendant had arrived. The time set for the payment of the 90 per cent. is the 19th of December, 1891. The property was resold on the 30th day of November, 1891. This imperfection is, of course, fatal to the suit.

It may be well to remark that, in the opinion of the court, the orders of the chancellor regulating the course to be taken by his receiver, and which proceedings are so uselessly interpolated into the case, cannot in any degree affect or impair the legal rights of the defendant. On the two grounds just indicated, the defendant is entitled to judgment on his demurrer.