porations; but (as we construe the allegations of the answer) it was never filed.

that ordinarily the added security to creditors of the personal liability of stockholders is less needed in the case of such corporations, inasmuch as manufacturing is the process of adding value to raw material by labor, and hence, if honestly conducted, is a safer business and less liable to speculative risks than trade generally.

Much of this history is perhaps irrelevant to any questions involved in these proceedings, but it will serve to convey a tolerably clear idea of the situation of things as presented by the record. The relator by his information stands admitting the corporate existence of the respondent, but claims upon the facts four But to extend the exemption to corporations grounds of forfeiture of its franchises for mis- combining manufacturing with some other disuser, viz.: first, doing business without filing a tinct and independent business would at once certificate as required by section 9 of the Act defeat the object of the Amendment of 1872, and of 1873; second, dealing in negotiable paper, also nullify the constitutional provision imposand in the stock and indebtedness of other and ing a personal liability on the stockholders of insolvent corporations, and issuing its stock all but manufacturing corporations; for this therefor; third, purchasing and retiring its own exemption could then be secured by attaching stock to the prejudice of its creditors and stock- a very small manufacturing annex to a very holders; fourth, using its franchises and pow- large trading or speculative business, all the ers as an instrumentality of fraud and oppres- risk of the latter being immediately added to sion in bringing a large number of suits against the whole business, and no inducement existthe stockholders of Seymour Sabin & Coming to invest any capital in the former except pany and the car company upon the claims referred to.

the smallest possible amount necessary to bring the whole business within the constitutional exemption.

This last is but a makeweight and is not urged upon the argument. Taken by itself It is clear, therefore, to our minds that under there is nothing in it; for if respondent had the the Act of 1873 a corporation can only be power to purchase these claims it has an un-organized for carrying on an exclusively mandoubted right to bring suits on them to test the ufacturing or mechanical business, which of question of personal liability of the stockhold- course includes anything that is properly iners of these defunct corporations. cidental to or necessarily connected with such business. A corporation organized to carry on manufacturing and also some other lawful but independent business belongs to the class authorized by title 2, chapter 34, § 109-119.

The determination of the case will require the consideration of two leading questions: first, What kind of a corporation is the respondent? and, second, What is the office of an information in the nature of quo warranto, and what will constitute a misuser of corporate franchises such as to warrant a judgment of ouster in such proceedings?

The articles of association state that the corporation was formed under the Act of 1873 relating to manufacturing corporations, but this does not make it so. To determine its actual character we must look to the objects of its formation and the nature of its business as stated in the articles themselves. It cannot be made one kind of corporation merely by labeling it such, if its declared objects and purposes show it to be something else. No corporation can be organized under the Act of 1873, except for an exclusively manufacturing or mechanical business.

With this construction of the law in mind, it is not difficult, on examination of respondent's articles of association, to determine to what class it belongs. One of the declared objects of the formation is to purchase the capital stock and evidences of indebtedness of the car company, a business in no way incident to or properly connected with that of manufacturing. The contention of counsel to the contrary cannot be seriously entertained for a moment. If a manufacturing corporation desires to buy the plant of, another corporation formerly engaged in the same business, that is legitimate. And if, in order to get it, it becomes necessary to buy with it some other property, not needed for nor connected with the manufacturing business, this also would be permissible if done as incidental to the main purpose of securing the plant: but no such reason or excuse existed for buying the stock and indebtedness of the car company.

It does not authorize the organization of a corporation for the purpose of carrying on a manufacturing business and also another and independent business not properly incident to or connected with manufacturing. This is Indeed, it would be difficult to imagine anyclear from the very language of the Act itself, thing more foreign to or inconsistent with a as well as from the history of the causes lead- legitimate manufacturing business than for a ing to its enactment. It was passed immedi- corporation to invest all its capital in the stock ately after the adoption of the Constitutional and indebtedness of another and insolvent corAmendment of 1872, excepting the stockhold-poration. Under title 2 a corporation can be ers of manufacturing and mechanical corpora- organized to carry on any lawful business, and tions from the personal liability imposed by if parties desire to deal in such speculative article 10, section 3 of the Constitution upon property, they can do so under that title, but the stockholders of all corporations, and was not under the Act of 1873, even by connecting doubtless passed to carry into effect the pur-it with manufacturing. Our conclusion therepose of that amendment. That purpose was to encourage manufacturing enterprises by exempting those investing their capital in that business from personal liability.

One other consideration that not improbably induced this exemption in favor of stockholders in purely manufacturing corporations was

fore is that respondent is a corporation of the class authorized by title 2. That is what the corporators themselves have characterized it by their statement of the object of its formation.

The articles of association were informal or defective in the one particular already men

tioned, but we think this was cured by chapter 132, General Laws 1887. But in any event respondent is a corporation either de jure or de facto, and it is immaterial here which; for, as already suggested, the relator is not in a position to question its corporate existence.

These views as to the corporate character of respondent dispose of relator's first ground of forfeiture, and in part at least of the second, for in the case of a corporation organized under title 2 no certificate, such as described in section 128, chapter 34, General Statute, is required, and such a corporation may purchase the stock and indebtedness of another corporation if within the objects expressed in its articles of association.

Therefore, there remains only to be considered the effect, first, of respondent's issuing its stock, dollar for dollar, for the stock and indebtedness of the car company, which was confessedly worth much less than par, and, second, of purchasing and retiring its own stock held by those who took its bonds.

While it is not necessary here to go at length into the subject, yet it is proper in this connection to consider briefly the second principal question referred to at the outset, viz. the office of an information in the nature of quo warranto, and what will amount to such a misuser of corporate franchises as to justify a judgment of forfeiture in such proceedings.

And right here it is important to keep in mind certain distinctions which it seems to us counsel for relator has overlooked. And first, these special proceedings upon information must not be confounded with a civil action under chapter 29, General Statutes.

evil must be one remediable in no other form of judicial proceeding.

Courts always proceed with great caution in declaring a forfeiture of franchises, and require the prosecutor seeking the forfeiture to bring the case clearly within the rules of law entitling him to exact so severe a penalty. It is also necessary to notice the distinction, frequently overlooked, between franchises and powers.

The definition of a franchise given by Finch, adopted by Blackstone, and accepted by every authority since, is "a royal privilege or branch of the King's prerogative, subsisting in the hands of a subject." To be a franchise the right possessed must be such as cannot be exercised without the express permission of the sovereign power-a privilege or immunity of a a public nature which cannot be legally exercised without legislative grant.

It follows that the right, whether existing in a natural or artificial person, to carry on any particular business, is not necessarily or usually a franchise. The kinds of business which corporations organized either under title 2 chapter 34, or, under the Act of 1873, are authorized to carry on, are powers, but not franchises; because they are rights possessed by all citizens who choose to engage in them without any legislative grant. The only franchise which such corporations possess is the general franchise to be or exist as a corporate entity; hence, if they engage in any busi ness not authorized by the statute it is ultra vires or in excess of their powers, but not a usurpation of franchises not granted.

Acts in excess of power may undoubtedly be Although in a general sense the two may be carried so far as to amount to a misuser of the termed concurrent remedies, yet it is undoubt-franchise to be a corporation, and a ground for edly true that the office or function of the lat-its forfeiture. How far it must go to amount ter has been enlarged somewhat beyond that of to this the courts have wisely never attempted a common-law quo warranto information. In some jurisdictions, as formerly with us, the civil action is the only remedy. But while, quo warranto having been revived in this State, we have now the two remedies, yet the office of the writ of quo warranto ought not to be extended beyond what it was at common law. The remedy by civil action is more in accordance with the ordinary mode of judicial procedure in determining property rights, and ought to be pursued except in those special or exceptional cases where the public interests seem to demand a more speedy or summary mode of procedure than by action in the district court. The common-law quo warranto information, as we have it to-day, is substantially as left by the changes and modifications made by the Statute of 9 Anne, chap. 20.

The scope of the remedy furnished by it is to forfeit the franchises of a corporation for misuser or nonuser. It is therefore necessary in order to secure a judicial forfeiture of respondent's charter to show a misuser of its franchises justifying such a forfeiture. And as already remarked the object being to protect the public, and not to redress private grievances, the misuser must be such as to work or threaten a substantial injury to the public, or such as to amount to a violation of the fundamental condition of the contract by which the franchise was granted and thus defeat the purpose of the grant; and ordinarily the wrong or

to define except in very general terms, preferring the safe course of adopting a gradual proc ess of judicial inclusion and exclusion as the cases arise. But we think it may be safely stated as the general consensus of the authorities that to constitute a misuser of the corporate franchise such as to warrant its forfeiture, the ultra vires acts must be so substantial and continued as to amount to a clear violation of the condition upon which the franchise was granted, and so derange or destroy the business of the corporation that it no longer fulfills the end for which it was created. But in case of excess of powers it is only where some public mischief is done or threatened that the State, by the Attorney-General, should interfere.

If as between the company and its stockhold ers there is a wrongful application of the capi tal or an illegal incurring of liabilities, it is for the stockholders to complain. If the company is entering into contracts ultra vires to the prej udice of persons outside the corporation, such as creditors, it is for such persons to take steps to protect their interests. The mere fact that acts are ultra vires is not necessarily a ground for interference by the State, especially by quo warranto to forfeit the corporate franchises.

It should also be borne in mind that acts ultra vires may justify interference on the part of the State by injunction to prohibit a continuance of the excess of power which would not be sufficient ground for a forfeiture in proceed

ings in quo warranto; and hence many of the numerous authorities cited by relator, being of that class, are not entirely in point here. Applying these principles to the facts of the case, we think the State has failed to make out a case entitling it to judgment against respondent. Taking up first the issuing of its stock for the stock and indebtedness of the car company. None of the stockholders have any right to complain of this. They are all in the same boat; they got up the company for that express purpose and on that exact plan. A corporation may take property in payment of its stock if it be done bona fide and with no sinister or fraudulent purpose and there be nothing in its charter or the nature of its business that forbids it. If this stock and indebtedness of the car company was taken in payment of respondent's stock with a fraudulent purpose at fictitious value, in case the corporation becomes insolvent, creditors have their remedy against the stockholders as personally liable for stock not paid for. The alleged unlawful purchase and retirement of part of its own stock by the respondent stands on the same footing. If it is a wrong to other stockholders they have a perfect remedy. And so far as creditors are concerned, if the act is illegal, the parties who

surrendered the stock would still be personally responsible as stockholders in case of the insolvency of the corporation.

It may be that the plan on which this corporation is organized is not in accordance with the most approved financial principles; but with these financial matters we have nothing to do except so far as they may affect the legal questions involved, and upon the whole facts of the case we do not think that, under the rules of law applicable, the State has made out a case entitling it to a judgment of forfeiture in these proceedings.

It is also a consideration not without weight (although we do not place our decision upon it) that the consequences of whatever mistakes or unauthorized acts may have been made or done by respondent, could not now be remedied by any such judgment.

In view of the present condition of respondent's business, a dissolution of the corporation and a forced winding up of its affairs would involve new and additional loss to all parties concerned, both stockholders and creditors.

The demurrer to the answer is therefore overruled, and the information dismissed. Gilfillan, Ch. J., took no part in this case.

INDIANA SUPREME COURT.

Simeon T. VANCLEAVE, Appt.,

V.

Abraham CLARK.

(....Ind.....)

1. A man who has made a contract with another for the support of his infant daughter, for a valuable consideration, although the contract in one sense is for her benefit, can himself maintain an action for its breach. 2. Under a contract by which a person expressly covenants to keep the infant daughter of another in his own family as one of his children, to provide her with suitable food, clothing, schooling and medical attention, should she require it, and in case of her death to pay her funeral expenses, he has no legal right to contine her in the county asylum among the common paupers because she becomes insane. It is his duty, if he has no suitable place to keep her, to

in favor of plaintiff in an action to recover damages for an alleged breach of contract for the care, etc., of plaintiff's infant daughter. Reversed.

The facts are fully stated in the opinion.
Messrs. Will H. Thompson and Jere
West for appellant.

Messrs. Paul & Humphries for appellee.
Coffey, J., delivered the opinion of the

court:

On the first day of March, 1881, the appellant entered into a written agreement with the appellee, by the terms of which the appellant, for the consideration of $400, agreed to keep in his own family, take charge of and maintain at his own expense, the infant daughter of the appellee during her natural life. By the terms of the agreement the appellant was to keep her in his own family as one of his children, to provide her with suitable food, clothing, school3. Where an erroneous instruction ap-ing and medical attention, should she require pears in the record, if it be erroneous to such it, and in case of her death to pay her funeral a degree that it could not be cured by some other expenses. instruction, the court will consider it, although it does not appear that all the instructions are in

prepare one.

the record.

4. The proper measure of damages for breach of a contract by a person to keep in his own family the daughter of another, where the contract had been fully complied with for nearly two years, and the daughter was then placed in the county asylum and remained there until she died, with no attempt by either party to rescind the contract, is the difference in value between the care and treatment she actually received, and that called for by the contract, and not the whole consideration received for her keeping.

(March 12, 1889.)

APPEAL by defendant, from a judgment of the Circuit Court of Montgomery County

this contract, substantially, that the appellant It is averred in the complaint as a breach of his home as one of his children; that he did did not keep said daughter in his possession at not during her lifetime provide her with suitable food and clothing, medical attention and schooling, and did not keep her at his own house as a member of his family; but on the contrary, without the knowledge or consent of the appellee, and without the consent of said daughter, he took her to the poorhouse of the county, where she was permitted to remain until her death.

The complaint consists of two paragraphs, but the legal effect of both is the same.

The appellant filed a demurrer to the complaint, alleging that the same did not state facts

sufficient to constitute a cause of action; but the | lee's demurrer to the second paragraph of the demurrer was overruled, and he excepted. appellant's answer;

That the court erred in overruling the appellant's motion for a new trial.

The appellant argues that the complaint does not state a cause of action in favor of the appellee, because the contract in suit was made for the benefit of the daughter; and that if any cause of action existed for its breach it should be enforced in favor of the daughter and for her benefit alone.

We cannot agree with the appellant in this position. It is true that the contract was, in one sense, for the benefit of the daughter; but the appellee, as the father, was bound by law to support his infant daughter, and the appellant having contracted with him, for a valuable consideration, to perform that legal duty, was li able to him for any breach of that contract. In our opinion each paragraph of the complaint states a good cause of action. The second paragraph of the answer admit

plaint, and as it gave no legal excuse for such breach it was bad. The court, therefore, did not err in sustaining the demurrer of the appellee addressed to that paragraph.

The appellant then filed an answer in two paragraphs: the first is pleaded in mitigation of damages and alleges, substantially, that the daughter of the appellee named in the contract set out in the complaint, after she had been kept by the appellant for about two years, became seriously sick and diseased and afflicted with epileptic disorder and thereby became deranged in her mind, and was from that time forward to the day of her death unable to control herself and was insane and was a source of constant danger to herself and all persons about her; that defendant tried in every way possible to protect her from danger of self destruction but found it impossible to keep her from throwing herself into the fire and in many other ways mutilating and destroying herself; that she became so deranged and wild in her mind that it was impossible, with the means that could be used at the home of the defendant, to care for and protect her as was neces-ted a breach of the contract set out in the comsary; and the defendant, after exhausting every means available, endeavored to find some one who could control and protect said child, but could obtain no one; that not only was said child a constant danger to herself by reason of her insanity and the unreasoning willfulness of her acts, but unless restrained, guarded and withheld she would set fire to the furniture, beds and curtains and to the house in which the appellant lived; that though said child had grown to be a large girl, almost full grown, she was so diseased and deranged in her mind that she would, unless withheld and violently restrained, tear off her own clothing in the presence of men and thereby bring shame and humiliation upon herself and upon the appellant and his family that finding that the home of appellant was not a safe or proper place to longer keep said child, and that she could be better and more safely cared for and guarded, appellant took said child to the county asylum and placed her therein with instructions for her to be carefully attended upon and in all respects well and carefully protected; that she was so kept at said asylum for the period of nine months, when, by reason of the continuance and increasing violence of her sickness and disease, she died; that appellant attended to furnishing and paying for her funeral expenses and she was decently and properly cared for and given respectable burial.

The second paragraph avers the same facts set out in the first, but they are pleaded in this paragraph as a bar to the cause of action set up in the complaint.

The court sustained a demurrer to the second paragraph of this answer, and the appellant excepted.

The appellee replied by way of a general denial to the first paragraph of the answer; and the cause being at issue was tried by a jury who returned a verdict for the appellee.

Over a motion and reasons for a new trial the court rendered judgment on the verdict. The appellant assigns in this court, as er

ror:

That the court erred in overruling the demurrer of the appellant to the first and third paragraphs of the complaint;

That the court erred in sustaining the appel

As the appellant had expressly covenanted to keep the daughter in his family, when she be came insane it was his duty, if he had no suitable place to keep her, to prepare one. He had no legal right to confine her in the county asylum amongst the common paupers.

Indeed, with the contract in suit in her favor, she could in no sense be considered a pauper; and it was illegal to confine her at a place where none but that class could be lawfully admitted.

The appellant claims that the court erred in its instructions to the jury and also in refusing to give certain instructions asked by him.

It is contended by the appellee that it does not affirmatively appear that all the instructions given by the court are in the record, and that, therefore, no question relating to the instructions can be considered by this court.

After a careful consideration of the bill of exceptions we find that it sustains the contention of the appellee. It does not appear that the court was requested to instruct the jury in writing, nor does it appear that all the instructions were in fact written. Those set out in the bill were not signed by the judge nor is there any statement found in the bill, or in any other part of the record, from which it can be inferred that all the instructions given by the court are here for our consideration.

In this state of the record we cannot consider the instructions asked by the appellant and refused by the court. Ind. Mfg. Co. v. Millican, 87 Ind. 91; Pittsburgh, C. & St. L. R. Co. v. Noel, 77 Ind. 110; Newcomer v. Hutchings, 96 Ind. 123.

But it does not follow that because it does not appear that all the instructions given by the court are in the record, this court will not consider those which do appear. Where all the instructions are not before this court we cannot consider instructions asked and refused because the presumption obtains that, if they state the law applicable to the case, they were given in some other instruction.

But where an erroneous instruction appears

In this case the appellant had fully complied For the error of the court in giving instrucwith the contract for nearly two years. Under tion number 5 the cause must be reversed. this state of case it is not competent for the ap- Cause reversed, with instructions to the Cirpellee to sue for and recover the entire consid-cuit Court to grant a new trial and for further eration paid by him, by reason of the failure proceedings not inconsistent with this opinion

SOUTH CAROLINA SUPREME COURT.