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the debts of the corporation. This is apparent from the fact that the provision referred to was for the protection of persons dealing with the company, and not for the protection of its stockholders, who are expressly made personally and individually liable for such proportion of the debts of the company as the amount of its capital stock owned by them bears to the whole of such capital stock. The guaranty fund provided for by the statute is an additional security to parties, over and above the liability of the company and its stockholders; and, as between the makers of these notes and the company and its stockholders, the money paid by the stockholders cannot be made a charge upon such guarantors. Judgment affirmed.

We concur: Fox, J.; PATERSON, J.

SCOTT v. Wood. (No. 11,894.) (Supreme Court of California. Nov. 30, 1889.) CONTRACTS-EVIDENCE-BURDEN OF PROOF-IN

STRUCTIONS-APPEAL.

1. In an action for several years' wages at $250 a month, the answer averred affirmatively that some time after plaintiff commenced work there was an agreement with him for $200 a month; the court instructed the jury that as defendant had admitted the length of plaintiff's employment, and that it commenced at $250 a month, "the burden of proof is on defendant to show" an agreement to change the amount of compensation; and that, unless such agreement was established "by a preponderance of testimony," the verdict must be for plaintiff. Held, that the instruction was error, as the issue raised by the pleadings was whether the contract was, for a part of the time, at$200 or $250, and the burden of proving his claim was on plain tiff; the most that could be required of defendant being that he meet any prima facie case made by plaintiff, for which purpose a preponderance of testimony was not necessary. BEATTY, C. J., and PATERSON, J., dissenting.

der denying a new trial, upon the ground that it does not show a notice of intention. This objection must be disallowed, upon the authority of Pico v. Cohn, 20 Pac. Rep. 706, which overrules the cases relied up. on. Besides this, the points made can be considered on appeal from the judgment, and the statement used on the motion for a new trial is a record on appeal from the judgment. Code Civil Proc. § 950; Craig v. Fry, 68 Cal. 364, 9 Pac. Rep. 550. There are several errors which require a reversal of the judgment.

1. The recovery sought was for services which continued for several years. The complaint alleges that “on or about the 3d day of July, 1869, at the city and county of San Francisco, said defendants employed plaintiff as a salesman, and agreed to pay plaintiff for such services the sum of $250 per month; that under said employment and agreement the plaintiff entered into the services of the defendants on said 3d day of July, 1869, and from that time forward continued in their service under said employment, without intermission, until the 1st of April, 1885; that during all of said time the plaintiff was actively and continuously performing services for the defendants, as their salesman, under said contract of employment." The complaint further alleged that there was a balance due to plaintiff on account of said services of $755.78, which remained unpaid. The answer averred affirmatively that about the beginning of 1870 it was agreed that the salary should be $200 a month, and denied that at any time subsequent to the agreement last herein aforesaid there was or existed any agreement of defendants to pay plaintiff for said services any greater sum than $200 per month," and denied that anything remained unpaid. The case turned upon the question whether during a portion of the period in which the defendant rendered services, his salary was $200 or $250 per month. Upon this question the evidence was conflicting. The defendant testified that the salary had been fixed at $200 a month, in the beginning of 1870, and the plaintiff testified that it had not. The 4. Counsel should not be permitted to argue to court instructed the jury in relation to the a jury that an offer to pay a certain sum in settle-matter as follows: "The jury are inment of a demand is an admission that something is due, as Code Civil Proc. Cal. § 2078, expressly provides that "an offer to compromise is not an admission that anything is due."

2. Instruction that "when a fact is once shown to exist the law presumes it to continue until the contrary is shown" is error, as it is presumed to continue only "as long as is usual with things of

that nature."

3. Where there is no error in an instruction, but it is not as specific as desired by one of the parties, a request for more specific instruction

should be made.

5. Notice of intention to move for a new trial need not be made part of the record on appeal. Pico v. Cohn, 20 Pac. Rep. 706.

Commissioners' decision. In bank. Appeal from superior court, city and county of San Francisco; WALTER H. LEVY, Judge. Horace W. Philbrook, for appellant. G. E. Harpman, for respondent.

structed that the defendants admit employing the plaintiff on July 3, 1869, at the rate of $250 per month, and that he worked for them continuously until the 1st day of April, 1885; and that the burden of proof is upon the defendants to show that plaintiff's compensation was changed; that, unless the defendants establish by a preponderance of testimony that plaintiff in 1870, or at some other time, agreed to work for the defendants during the years 1870 and 1871 at the monthly compensation of $200, then they must find for the plaintiff." This was excepted to, and is specified as error. We think that the court erred in telling the jury that the defendant was required to have a preponderance of testimony upon the question mentioned. The term "burden of proof" is used in different senses. Sometimes it is used to signify the burden of making or meeting a prima facie case, and some times the burden of producing a preponderThe respondent makes a preliminary ob-ance of evidence. These burdens are often jection to the record on appeal from the or- on the same party. But this is not neces

HAYNE, C. This action was brought to recover under a contract between the plaintiff and the firm of Hobart, Wood & Co., for services as salesman. Pending the action Hobart died, and the case was continued against Wood as surviving partner. The plaintiff had a verdict, and the defendant Wood appeals from the judgment, and from an order denying a new trial.

sarily or always the case. And it is by no Transportation Co., 69 Wis. 13 et seq., 31 N. means safe to infer that because a party W. Rep. 164; Powers v. Russell, 13 Pick. 76; has the burden of meeting a prima facie Morgan v. Morse, 13 Gray, 152; Nichols v. case, therefore he must have a preponder- Munsel, 115 Mass. 567; Tarbox v. Steamance of evidence. It may be sufficient for boat Co., 50 Me. 345; Small v Clewley, 62 him to produce just enough evidence to Me. 157; Shepardson v. Perkins, 60 N. H. counter-balance the evidence adduced 77; Blodgett v. Cummings, Id. 116; Bank against him. This is illustrated by a very v. Doyle, 9 R. I. 78; Bank v. Seymour, 64 common case. Suppose that, upon an is- Mich. 72, 31 N. W. Rep. 140. In the present sue as to the performance of a contract case, we think that the learned judge of sued upon, the plaintiff should testify to the trial court fell into error from overfacts showing non-performance. "In such looking the distinction above pointed out. case, if the defendant produced no evidence, Why was the defendant required to have a the plaintiff must prevail. This is often preponderance of evidence? Did he have expressed by saying that the burden has the affirmative of the issue? We think shifted to the defendant. And so it has, not. The plaintiff had received money in one sense. But suppose that the defend- sufficient to discharge his claim, if the rate ant should take the stand and deny the of wages was $200 a month. His position truth of the facts testified to by the plain- was that the rate was $250 a month. It tiff, oath being opposed against oath. was necessary to his case that the continWould it be correct to say that the defend-uance of the latter rate through the period ant must have a preponderance of evi- claimed, or some part of it, should be esdence? It most certainly would not; and tablished. If that rate did not so continue, this though the burden of proof had been he could not recover. The continuance of transferred to him. Nor would it be cor- the higher rate being an essential fact in rect to say that the burden had "shifted his case, the rules of pleading required him back" to the plaintiff, if the burden of pro-to allege it in his complaint. If he had alducing a preponderance of evidence was leged it categorically, and the defendant meant; for that never was on the defend- had denied it explicitly, it would have been ant. The two burdens are distinct things. entirely clear that the plaintiff had the One may shift back and forth with the ebb affirmative of the issue. If anything furand flow of the testimony. The other re- ther than the mere statement of such mains with the party upon whom it is cast pleadings be required to show this, it is by the pleadings; that is to say, with the found in the test ordinarily used, and said party who has the affirmative of the issue, to be conclusive, and embodied in ourstatThe distinction is illustrated by the case ute, viz., which side would be successful, if of People v. Bushton, 22 Pac. Rep. 127. no evidence at all were introduced? See 1 There it was held that while, if the prose- Best, Ev. (Morgan's Ed.) § 268; 1 Phil. Ev. cution proved a prima facie case, the bur- (4th Amer. Ed.) 812; Code Civil Proc. den is upon the defendant to produce evi- § 1981. Now the pleadings here are in subdence tending to show a defense, yet that stance the same as above stated; and it is when this was done the rule that guilt the substance which must control on this must be proved beyond a reasonable doubt question and not the mere form. 1 Green!. applied to every part of the case, and con- Ev. (13th Ed.) § 74; 1 Best, Ev. (Morgan's sequently that if the evidence of the defend- Ed.) § 272. If the complaint be defective, the ant raised a reasonable doubt he was enti- defects may, in view of the absence of a tled to an acquittal. And the distinction special demurrer, be overlooked. But the has been expressly recognized in other plaintiff is in no better position than he states. In Bridge Corp. v. Butler, the su- would be in had the pleading been free from preme court of Massachusetts, per BIGE- defect. The complaint was not drawn Low, J., said: "The burden of proof and with absolute precision. It alleged that the weight of evidence are two very differ- the defendants employed the plaintiff at ent things. The former remains on the par- $250 per month, and that plaintiff "conty affirming a fact in support of his case, tinued in their service under said employand does not change in any aspect of the ment" for a certain time, and rendered cause; the latter shifts from side to side services "under said contract of employin the progress of a trial, according to the ment." But it does not allege that it was nature and strength of the proofs offered agreed that the rate of wages at which the in support or denial of the main fact to be services commenced was to continue established." 2 Gray, 132. So, in Heine- throughout the whole period, and it does mann v. Heard, the court of appeals of not state categorically that said rate did New York, per CHURCH, C. J., said: "Dur- so continue. And it might, perhaps, be aring the progress of a trial, it often happens gued that the phrase "under said employthat a party gives evidence tending to es- ment" was somewhat uncertain in meantablish his allegation,-sufficient, it may ing. But we treat the complaint as suffibe, to establish it prima facie; and it is ciently alleging that the rate did in fact sometimes said the burden of proof is then continue as it commenced. This essential shifted. All that is meant by this is that allegation was put in issue by the answer. there is a necessity of evidence to answer It averred affirmatively a different agree the prima facie case, or it will prevail; but ment, made shortly after the one stated in the burden of maintaining the affirmative the complaint, and denied that there was of the issue involved in the action is upon any subsequent agreement. This was the party alleging the fact which consti- sufficient to raise an issue as to the contintutes the issue, and this burden remains uance of the rate alleged. The fact that throughout the trial." 62 N Y. 455. And the traverse was affirmative, and not pureso in other cases. See Clark v. Hills, 67 ly negative, in form did not destroy its Tex. 141, 2 S. W. Rep. 356; Atkinson v. force nor change its essential nature,

was due. It is true that the testimony as to the offer came in without objection, but the statute expressly says that "an offer to compromise is not an admission that anything is due." Code Civil Proc. § 2078. The failure to object to the admission of evidence can hardly make that an admission which the law expressly declares is not so; and our impression is that the court ought not to have allowed counsel for plaintiff, against the protest of defendant, to argue that the offer was an admission. And it did not improve matters that the court told the jury, in substance, that they must disregard the offer, if they thought it was an offer to compromise, for that was a question for the determination of the court itself. But, as the question will probably not again arise, it is unnecessary to express a positive opinion in regard to it, further than to say that in our opinion the offer was an offer to compromise.

The instruction at folios 66, 67, requested by defendant, was not quite accurate. The conversation there detailed would not of itself have effected a change in the rate of wages. But if, after the conversation, the plaintiff remained in the employment, his remaining would be taken as an assent to the change of wages. This was probably the idea of the court in adding a clause to the instruction requested. The language of the modification, however, is perhaps not sufficiently clear, when taken in connection with what preceded it.

Frisch v. Caler, 21 Cal. 75; Murphy v. Napa
Co., 20 Cal. 497; Woodworth v. Knowlton,
22 Cal. 168; Gilman v. Bootz, 63 Cal. 120.
The issue, though lamely made up, was the
same, in substance, as if it had been made
up with absolute precision. The only pos-
sible theory upon which it could be claimed
that the pleadings cast the affirmative up-
on the defendants is that the answer ad-
mits that the rate commenced at $250, and
that it must be inferred that it continued
unchanged. But, as above shown, its con-
tinuance is put in issue. As a matter of
evidence, it may be true that the continu-
ance of the rate was to be inferred, in the
absence of any evidence to the contrary.
But when evidence to the contrary was
adduced, there was no reason for saying
that the defendant must have a preponder-
ance of testimony. So to say is to over-
look the distinction between the burden of
meeting a prima facie case and the burden
of producing a preponderance of evidence.
2. The court instructed the jury that
"when a fact is once shown to exist the
law presumes it to continue until the con-
trary is shown." This was excepted to,
and was specified as error. We think that
it was error. There is no such presump-
tion, regardless of the nature of the fact.
Suppose that a man was shown to be liv-
ing at a certain time. Would it be pre-
sumed that he continued to live for 100
years? Or suppose that a man was shown
to be insolvent at a particular time. Would
it be presumed that the insolvency con-
tinued through several years? In Coghill
v. Boring, 15 Cal. 219, the court, per BALD-
WIN, J., said: "It does not follow, be-
cause a man is insolvent on one day, that
he was insolvent at any subsequent or an-
tecedent period." The true rule, and the
one established by the Code, is that the
presumption is that "a thing once proved
to exist continues as long as is usual with
things of that nature." Code Civil Proc.
§ 1963, subd. 32; and compare Lux v. Hag-
gin, 69 Cal. 418, 10 Pac. Rep. 674. In view of
the evidence, the effect of the instruction
was that the court told the jury that they
must find that the rate of wages continued
through several years at $250 per month,
unless there was evidence to the contrary.
But we do not think that the employment
of a salesman at $250 per month is a thing
of such a nature that the court can say,
as a matter of law. that it continued for
several years unless the contrary was
proved. The continuance of the employ-
ment at the rate mentioned might be in-
ferred as a fact by the jury, under the cir-
cumstances, but under our system the
court is not allowed to instruct the jury as
to what inference of fact they are to draw.
Stone v. Mining Co., 52 Cal. 318, McNeil v.
Barney, 51 Cal. 604; People v. Walden, Id.senting.)
589.

3. As the case must go back for a retrial on account of the errors above noticed, there are several observations which we think should be made. It was probably error for the court to allow the plaintiff's counsel to argue to the jury, against the protest of the defendant, that the offer of one of the then partners to pay a certain sum and counsel fees in settlement of the claim was an admission that something

The instruction at folio 73 was correct. It might have been more specific as to what constituted an appropriation, (Civil Code, § 1479, subd. 1,) but, if the defendant desired to have it more specific, he should have requested an instruction on that point. We advise that the judgment and order appealed from be reversed, and the cause remanded for a new trial.

We concur:

BELCHER, C. C.; FOOTE, C.

PER CURIAM. For the reasons given in the foregoing opinion the judgment and order appealed from are reversed, and the cause remanded for a new trial.

THORNTON, J., (concurring.) I concur in the judgment of reversal, but on the sole ground that the court erred in refusing to permit testimony of the witness Wood as to Hobart's state of mind on the days just previous to and just preceding the day of the conversation with Scott. See Estate of Toomes, 54 Cal. 516, and cases there cited. The above is the only error I can find in the record.

BEATTY, C. J., and PATERSON, J., (dis

We dissent. The two instruc.. tions quoted by Commissioner HAYNE may have been technically inaccurate; but, as applied to the point in controversy in this case, and as they must have been understood by the jury, they were scarcely erroneous,-certainly not injurious. It was agreed that plaintiff commenced work at $250 per month, and that he continued in his employment right along. In the absence of any evidence to the contrary, the presumption certainly would be that the

rate of wages continued as it began; and, if | H. and E. D. Silsby made a deed of the the evidence as to a reduction of the rate property to Falkner, Morehead, and Dawhile the employment continued was exact- vis, as trustees for the benefit of creditors. ly in equilibrio, the finding should have In December, 1878, (which was after the been against such change. This was all last-mentioned deed,) E. D. Silsby, who the instructions could have been under- was then residing with his family on the stood to mean, and in this sense they were property, declared a homestead thereon. not erroneous. The judgment and order In June, 1887, E. D. Silsby died, and in Deappealed from should be affirmed. cember of the same year the surviving trustees, for the benefit of creditors, executed a reconveyance of the property to W. H. and E. D. Silsby, (which latter person was then dead,) reciting that the deed to them was inefficient by reason of the prior deed of

MOORE V. MOORE. (No. 13,205.) (Supreme Court of California. Dec. 10, 1889.) On rehearing. In bank. For opinion, on hearing in department, see ante, 589. Rehearing denied December 9, 1889. No opinion.

BEATTY, C. J., (dissenting.) I think that the evidence in this case is wholly insufficient to sustain the findings of the superior court as to the defense of the statute of limitations, and therefore I dissent from the order denying a rehearing in bank.

trust to Carroll and Miller, and that the reconveyance was made "for the purpose of clearing the title." The action was commenced in 1888 against the widow and children of E. D. Silsby.

MCCORMACK et al. v. SILSBY et al. (No. premises, and entered into the actual pos

13,212.)

(Supreme Court of California. Dec. 11, 1889.) QUIETING TITLE-ADVERSE POSSESSION-HOME

STEAD.

1. Where a purchaser of land, believing he has a good title, tells one who is in possession that he has bought the land, and demands possession, which is given without protest, and he thereafter continues in peaceable possession for more than five years, such possession is adverse, and he thereby acquires a title which he may have quiet ed in an action against the party in possession at the time of his purchase.

2. A homestead is extinguished by peaceable

adverse possession for more than five years.

We do not deem it necessary to consider the effect of this paper title, for the reason that, in our opinion, the plaintiffs acquired a title by adverse possession. The court finds in this regard as follows: "That on the day of November, 1879, said plaintiffs ousted the said E. D. Silsby from said session of all of said lands, claiming all interest therein, as their own and in their own right, exclusive, and they have, ever since said date last aforesaid, continuously, notoriousy, and openly occupied, used, and cultivated the said land, under a claim of title, as their own, exclusive of any other right or interest, and hostile to the said E. D. Silsby and all the world, and have paid all the taxes, state, county, and municipal, assessed against said land and premises since said date of October, 1879; and that they had and held said land, as just stat

ed, for more than five years continuously, to-wit, from November, 1879, to June 10, Commissioners' decision. In bank. Ap-1887, prior to the death of the said E. D. peal from superior court, Butte county; PHIL. W. KEYSER, Judge.

Gray & Sexton, for appellants. Park Henshaw, for respndents.

HAYNE, C. Suit to quiet title. Judgment for plaintiffs. Defendants appeal. The paper title of the parties is in a sufficiently mangled condition. On December 27, 1877, W. H. Silsby and E. D. Silsby were tenants in common of the property. On that day W. H. Silsby made a deed to Carroll and Miller, in trust to secure certain indebtedness to the Pacific Mutual Life Insurance Company. It cannot be ascertained from the record whether this deed purported to be of the whole title, or only of the grantor's interest therein, nor can the terms and conditions of the trust be ascertained further than is above stated. In April, 1878, the trustees sold the property to the insurance company. It cannot be ascertained whether this sale was properly made by the trustees or not. It is found that "a deed was subsequently, on the 19th day of April, 1879, executed to said insurance company by said trustees, and they became the owners and succeeded to the interest of said W. H. Silsby in and to said lands." In October, 1879, the insurance company made a deed of all its right, title, and interest in the property to the plaintiffs. In September, 1878, (which was after the making of the trust-deed above mentioned,) W.

Silsby.'

We think that this finding is sustained by the evidence. It appears that the plaintiffs took their deed from the insurance company without any examination of the title, and supposed that they acquired the whole title. One of them says: "I do not know that I bought only half the ranch,— bought 320 acres, more or less. I did not examine the records, or have them examined. Took it upon their say so. When I got the deed from the insurance company I did not know that I was purchasing only one-half;" and the court finds this to be the fact. Acting under this beief, they went to E. D. Silsby, who was in possession of the property, "told Silsby we had bought the land," and demanded possession. The latter seems to have been in equal ignorance of the true state of the title. He made no assertion of any right to the property. Said "he was sorry he had not been able to keep the place for a home," delivered up the keys, asked for a short time in which to move off, and actually moved away within two weeks. It is not disputed that for eight years subsequent to this occurrence the plaintiffs were in the actual possession, claiming the property as their own, and that during all this time Silsby knew that they were so in possession, but asserted no claim on his part. That such a misappre hension occurred is conceded by the counsel for the appellants, who say: "Each

party appears to have been laboring under | create debts beyond their subscribed capital a mistaken idea of his rights. Probably a stock. *** For a violation of the pro

like mistake all around never took place visions of this section, the directors under before and never will occur again." But whose administration the same may have such mistake does not prevent the posses- happened, except those who may have sion of the plaintiffs from being adverse. caused their dissent therefrom to be entered It is not material to consider what was the at large on the minutes of the directors at character of the deed under which the the time, or were not present when the plaintiffs entered. That could only be ma- same did happen, are, in their individual terial upon the question of the nature of and private capacity, jointly and severally the claim asserted by plaintiffs, and of no- liable to the corporation, and to the credtice to Silsby of such claim. The plaintiffs itors thereof, in the event of its dissoluinformed the occupant, in so many words, tion, to the full amount of the * that they had bought the whole property, debt contracted." The defendants were and that he must go. He acquiesced in the members of the board of directors of the claim, and went. It matters not whether South Mountain Consolidated Mining Comthe claim asserted by the plaintiffs was pany, a corporation organized under the well or ill founded, or whether the occupant laws of this state, and having a subscribed might have made successful resistance if he capital stock of $10,000,000, divided into had attempted to do so. The intent of the 100,000 shares, all of which were issued as plaintiffs to claim the land as their own, full-paid stock, in part payment of the and to dispute the right of the occupant, mines and other property of the corpora was clearly manifested, (Bath v. Valdez, 70 tion. The officers of the corporation borCal. 359, 11 Pac. Rep. 724;) and, this being rowed large sums of money from the plainso, knowledge of the actual state of the title tiffs, who were partners in a banking buswas immaterial. There was certainly an iness at Silver City, Idaho. All of the monouster, and the subsequent possession was eys borrowed by the corporation were reclearly adverse. Sneed v. Osborn, 25 Cal. paid to plaintiffs, except the sum of $46,626; Grimm v. Curley, 43 Cal. 250. This ad- 953.50. In February, 1876, and while this verse possession gave the plaintiffs a title amount remained unpaid, the corporation which they were entitled to have quieted. became insolvent. A petition in bankruptThe question to which the learned counsel cy was filed in the United States district have addressed the main portion of their court at San Francisco, the usual assignargument is as to the validity of the home-ment was made, and the plaintiffs duly stead, it being urged on one side, and de- proved and filed their claim, but never re nied on the other, that under the Code a ceived any dividends; the receipts from homestead can be declared upon an undi- sales having been consumed in the payment vided interest. But we do not think it nec- of dividends to preferred creditors. Duressary to express an opinion upon this ing the months of July and August, 1875, question. Assuming that the homestead when the indebtedness to plaintiffs was was valid at its inception, it was extin- created, the corporation was in debt about guished, not by abandonment, but by the $200,000. The defendants were present at adverse possession of plaintiffs. Mauldin v. all meetings of the directors when the inCox, 67 Cal. 387, 7 Pac. Rep. 804. We there-debtedness was incurred, and none of them fore advise that the judgment and order appealed from be affirmed.

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MOORE et al. v. LENT et al. (No. 12,095.) (Supreme Court of California. Dec. 2, 1889.)

CORPORATIONS-CAPITAL STOCK.

caused any dissent to be spread upon the minutes. The court found that "the debt alleged in the complaint was not, nor was any debt created by said corporation, beyond its subscribed capital stock." The liable to the plaintiffs in any amount, and, judgment having been entered in their favor, plaintiffs moved for a new trial, which was denied. The appeal is from the order and from the judgment.

court held that the defendants were not

The principal controversy here is as to the proper construction of the words, "beyond the subscribed capital stock." Appellants contend that when the directors purchased the mines for $10,000,000, to be paid in stock, they created a debt of $10,000,000, and when they issued all the subscribed ap

Civil Code Cal. § 309, prohibiting the direct ors of a corporation from creating debts "beyond their subscribed capital stock," under penalty of being individually liable therefor, applies to all the subscribed capital stock, whether paid in or not, and regardless of the disposition made of it; and the debts do not include capital stock paid for cor-ital stock in payment of that debt they no porate property.

Department 1. Appeal from superior court, city and county of San Francisco; J. F. SULLIVAN, Judge.

longer had any subscribed capital stock, and every dollar of indebtedness subsequently created was a debt created "beyond the subscribed capital stock." It is Action by C. W. Moore and others against conceded that both the property of a corW. M. Lent and others. Judgment for de-poration and its subscribed capital stock fendants. Plaintiffs' motion for a new trial denied, and they appeal.

James A. Waymire, for appellants. Allister & Bergin, for respondents.

are trust funds for the benefit of the creditors; but it is claimed that the legislature Mc-made, or intended to make, a distinction between capital, which may consist of property of an uncertain, speculative value, and subscribed capital stock, which is payable

PATERSON, J. This action is based upon the following provision of the Code: "The directors of corporations must not

*

1 Civil Code, § 309,

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