the plaintiff's part. If with such sanction the debt would be obligatory, the sanction will, primarily, be presumed. Its non-existence, if it does not exist, is matter of defense, to be shown by the defendant: Gelpoke v. City of Dubuque, 1 Wall. U. S. 221. In an action against the City of St. Paul, on a contract for grading streets, it is not necessary to allege that an estimate of the expenses was filed by the commissioner, nor that the contract was made with the lowest bidder: Nash v. St. Paul, 8 Minn. 172.

55. Corporation must be Alleged.—It is an indispensable allegation, in an action brought by a corporation, that it is a corporation, and it results from the logic of pleading that the opposite party may deny the allegation: Oroville and Virginia City Railroad Company v. The Supervisors of Plumas County, 37 Cal. 354. A substantial compliance with the requirements of the statute will be sufficient to show a corporation de jure in an action between the corporation and a private person. Id. See ante, par. 37, Domestic Corporations. Acts incorporating cities are public acts: People v. Potter, 35 Cal. 110.

56. Form. For forms of complaint under the New York Code, see Carman v. Mayor of N. Y., 14 Abb. Pr. 301; Doolittle v. Superv. of Broome, 18 N. Y. 155; Roosevelt v. Draper, 23 Id. 318.

57. Injury by Negligence.-In what cases an action lies against a village for neglect to maintain sidewalks: See Harrington v. Village of Corning, 51 Barb. 396. The person or persons upon whom the law may impose the duty either to repair a defect, or to guard the public from an excavation, embankment, or grading, and also the officer or officers through whose official neglect such defect continues, shall be jointly and severally liable: Eustace v. Jahns, 38 Cal. 3. Incorporated cities are not liable for injuries sustained by private individuals, caused by the neglect of the city officers in keeping its streets in repair, unless made so liable by the acts under which they are incorporated: Winbigler v. City of Los Angeles, 45 Cal. 36. See, also, O'Hale v. Sacramento, 48 Id. 212; Krause v. Sacrumento, 48 Id. 221.

58. Nuisance.-If a city, in the exercise of its right to grade highways, creates a stagnant pond on a man's land, close to his house, it is liable in damages: Nevins v. City of Peoria, 41 Ill. 503.

59. Presentation of Claim.-No action can be maintained against a municipal corporation in New York till such claim has been presented to the Comptroller. Laws of N. Y., 1860, ch. 379, sec. 2; Russell v. Mayor of N. Y., 1 Daly, 263. For somewhat similar statutes as to the necessary demand before a suit against the Cities of Brooklyn and Buffalo, respectively, see Howell v. City of Buffalo, 15 N. Y. 512; Hart v. City of Brooklyn, 36 Barb. 226. For similar statutes in California, see local acts. In New York, a second demand on the expiration of twenty days after the rejection of the claim, is required, and under that practice the following allegation is essential: That thereafter, on, etc., and after the expiration of twenty days, he made a second demand, in writing, upon the said.................... for the adjustment of the said claim; but the said.......................... has hitherto wholly neglected and refused to make an adjustment or payment thereof. See Abb. Forms, No. 184, and authorities there cited.

1

The plaintiff, a corporation existing by [or under] the laws of this State, complains and alleges:

I. [State cause of action.]

[Demand of Judgment.]

60. Actions by. That a county is a corporation, see Smith v. Myers, 15 Cal. 33. Counties are quasi corporations, and can sue and be sued: Price v. Sacramento Co., 6 Cal. 254; People ex rel. Hunt v. Supervisors, 28 Id. 431. But the people of a county are not the corporation: See Political Code, secs. 4000-4003. "Actions against counties may be commenced and tried in any county in the judicial district in which said county is situated, unless such actions are between counties, in which case they may be commenced and tried in any county, not a party thereto:" Code C. P. sec. 394.

61. Claims Presented.—The claim against a county must first be presented to the Board of Supervisors: Political Code, secs. 4072, 3, 4 and 5. And the complaint must show that the claim has been first presented to the Board of Supervisors, and been by them rejected: McCann v. Sierra County, 7 Cal. 123. The right to sue a county is not limited to cases of tort, malfeasance, etc.; but is given in every case of account after presentation to, and rejection by, the Board of Supervisors. The complaint must aver such presentment: Price v. The County of Sacrumento, 6 Cal. 254.

62. Complaints.-In California, a complaint which alleges that the plaintiff, as a justice of the peace, performed services at the request of the District Attorney for the county, in cases wherein the people of the State were plaintiffs, to the amount of thirty-two hundred dollars, and that defendant thereby became and is liable to pay the said sum, does not state facts sufficient to constitute a cause of action against said county: Miner v. Solano County, 26 Cal. 115. A complaint in an action against a county for damages sustained by the location of a public highway over plaintiff's land, laid out under the Act of 1861, fails to state a cause of action, unless it avers that the plaintiff had attempted to come to an agreement with the Board of Supervisors as to the amount of damages sustained, and could not agree with the board as to such amount: Lincoln v. Colusa County, 28 Cal. 662.

63. County as Plaintiff.—A suit brought for or against a county shall be by or in the name of such county: Political Code, sec. 4002; Smith v. Myers, 15 Cal. 33; Placer Co. v. Astin, 8 Cal. 305. So held in an action on a recognizance: Mendocino Co. v. Lamar, 30 Id. 627. So, also, in an action for the recovery of money from a defaulting treasurer: Mendocino Co. v. Morris, 32 Cal. 145. Or to recover money belonging to the General County Fund: Solano Co. v. Nevill, 27 Cal. 468; Sharp v. Contra Costa Co., 34 Cal. 284. So, an action may be maintained in the name of the county, upon a note pay

able to the county, to the use of the State School Fund: Barry County v. McGlothlin, 19 Mo. 307. A county is a corporation, and is the proper party plaintiff to object to a contract made by the Board of Supervisors for building a jail: Smith v. Myers, 15 Cal. 33; see Political Code, secs. 4000 to 4003.

64. County as Defendant.-That counties may be made defendants, see Price v. Sacramento Co., 6 Cal. 254; People v. Supervisors, 28 Id. 431; Waitz V. Ormsby Co., 1 Nev. 370. Proceedings by mandamus against county officers are properly brought in the name of the county: Calaveras Co. v. Brockway, 30 Cal. 325. A proceeding to compel the supervisors to exercise their discretion in auditing a claim against the county, should not be against the supervisors individually: People v. Supervisors of Cortland, 24 How. Pr. 119. In New York, in actions against counties, suit should be brought against supervisors: Wild v. Super. of Columbia Co., 9 How. Pr. 315.

65. Medical Care of Sick.-A complaint in an action against a county to recover for medical care and treatment of sick persons, fails to state a cause of action if it do not aver that the sick persons treated were indigent persons, and residents of the county: Johnson v. Santa Clara Co., 28 Cal. 545.

66. Medical Services.-When in an action against a corporation for the value of medical services rendered its employees, the petition did not allege any promise by the defendant, or any fact by which the law would imply a promise, it was held defective. An allegation that the services were rendered at the instance and request of the agent of the defendant, is not an averment that they were rendered at the instance and request of the defendant: Wells v. Pacific Railroad, 35 Mo. 164.

67. Supervisors, Liabilities of.—Boards of Supervisors cannot be sued in their official character, in ordinary common law actions, for claims against the public, county, or village, without express statutory provision: Hastings v. City and County of San Francisco, 18 Cal. 49. Where the Board of Supervisors consists of three members, at least two must be joined as defendants in an action to enjoin them: Trinity Co. v. McCammon, 25 Cal. 119.

68. Under New Charter.-A complaint against a municipal corporation existing under a new charter and name, for work and labor done for the same town under a former charter and name, must aver that the new incorporation is liable for the debts of the old: Lyle v. Common Council of Alexandria, 1 Cranch. 473; see, further, Clearwater v. Meredith, 1 Wall. U. S. 25.

No. 49.

ix. Against the Trustees of a Dissolved Corporation, for an Accounting.

[TITLE.]

The plaintiff, on behalf of himself, as well as of all other creditors of the

....

Company who may come in

and contribute to the expenses of this action, complains

corporation was dissolved by the judgment of the ... court on that day duly given and made in a certain proceeding in said court then pending, wherein the people of the State of California, upon information of the Attorney-General of said State, was plaintiff, and the said corporation was defendant (or that it was dissolved on its own petition to the County Judge, or otherwise, as the case may be).

IV. That the defendants above named were at and preceding the date of the dissolution of said corporation, the (trustees, directors, or managers, etc., according to the fact) of said corporation, and upon its said dissolution became the trustees of the creditors (or stockholders) thereof.

V. That the defendants as such trustees have received a large amount of money and other property belonging to the said company, but have refused to pay the claim of the plaintiff.

Wherefore, the plaintiff demands judgment.

1. That the defendants account, under the direction of the court, for the property received by them as aforesaid. 2. For the payment to him of ..... dollars, with interest from the .... day of .............. day of........, 187., and costs, out of the funds in possession of the defendants, or which they may collect.

3. That the defendants, without delay, proceed to the discharge of the trusts devolved upon them in the premises.

69. Dissolution by Surrender.-In "Angel & Ames on Corporations" (sec. 772), after announcing that some doubt has existed in England touching the power of a municipal corporation to surrender its corporate existence, the author concludes that "by far the better opinion is, that where the surrender is duly made and accepted, it is effectual to dissolve a municipal body. In this country the power of a private corporation to dissolve itself by its own assent seems to be assumed by all judges upon the point." The authorities quoted in support are: Hampshire v. Franklin, 16 Mass. 86; McLaren v. Pennington, 1 Paige, 107; Enfield Toll Bridge Co. v. Connecticut Railroad Co., 7 Conn. 45; Sloe v. Blum, 19 John, 456; Canal Co. v. Railroad Co., 4 Gill & J. 1; Trustees, etc. v. Zanesville C. and M. Co., 9 Ohio, 203; Penobscot Boom Co. v. Sampson, 16 Maine, 224; Mumma v. Potomac Co., 8 Pet. 281; The People of the State of California v. President and Trustees of the College of California, 38 Cal. 166.

70. Insufficient Averment. --A complaint against a trustee of a moneyed corporation is bad, if it shows that the wrongful acts of the defendant were committed before the corporation incurred any obligation to the plaintiff: Ogden v. Rollo, 13 Abb. Pr. 300.

71. Liability of Trustees or Receivers. - Trustees or receivers shall be jointly and severally responsible to the creditors and stockholders, to the extent of its property and effects in their hands: Civil Code, sec. 400.

72. Surrender of Corporate Powers.-Chancellor KENT says: "The better opinion seems to be that a corporation aggregate may surrender, and in that way dissolve itself; but then the surrender must be accepted by the government, and be made by some solemn act to render it complete:" 2 Kent's Com. 311; The People of the State of California v. President and Trustees of the College of California, 38 Cal. 166; Sullivan v. Triunfo M. Co., 39 Id. 459.

73. Surrender by Trustees.-That the trustees have the power to surrender the franchise, after its debts are paid, is a proposition which admits of no doubt; and if they should do so without having made any disposition of its property, there being no stockholders or creditors, the personal prop erty of the corporation would vest in the State: 2 Kent. Com. 386; Angel & Ames on Corp. sec. 195; People v. President and Trustees of the College of California, 38 Cal. 166.

74. Trustees, Appointment of.-Upon the dissolution of a corporation, unless other persons are appointed by the Legislature or by a court of competent authority, the directors or managers of the corporation shall be trustees of the creditors and stockholders: Civil Code, sec. 400.

75. Trustees, Power of.-Such trustees or receivers may sue and recover the debts and property of the dissolved corporation. And where a common-law receiver sues in the name of the corporation, the declaration must aver that the suit is brought by the direction of the receiver: Bank of Niagara v. Johnson, 8 Wend. 645. So when a receiver is appointed and the assets are assigned to him, even if the corporation is still in being: Bank of Lyons v. Demmon, Hill & D. Supp. 398.

No. 50.

x. Against Director of Insurance Company-Grounds of Unlawful Dividends and Transfers of Assets.

[TITLE.]

....... day of................ ., 187., the

....

........

.........

186., to the Company was a

corporation existing by virtue of the laws of this State, and authorized by law to make insurances.

II. That during the said time, the said corporation made insurances for plaintiff, in the sum of........ dollars, on two vessels, viz: .... dollars on a vessel named the dollars on a vessel

"Brother Jonathan," and .... named the "Central America;" both of which vessels be