"That if the prisoner procured Dockery to go and assist in robbing James Thompson, and after they had completed the work for which he had been hired, and had left and gone some distance away, and then Church returned and murdered the deceased contrary to the wishes of Dockery, the jury cannot convict the prisoner." His honor committed no error in declining to give the instruction, or in the charge which he gave the jury. He instructed them that if they believed Church after the robbery left the house twenty or twenty-five yards, and returned and murdered the deceased through his own malice and not to conceal the robbery, the prisoner, though they should believe he procured Church to commit the robbery, would not be guilty as accessory to the murder. But if they believed that the prisoner procured Church to commit the robbery, and that Church murdered the deceased to conceal the robbery, then the jury should find the prisoner guilty as accessory to the murder. The charge is fully sustained by the authorities. In Foster's Crown Law, 370, the principle is laid down, "that if A. adviseth B. to rob C., and he doth rob him; and in so doing, either upon resistance made, or to conceal the fact, or upon any other motive operating at the time of the robbery, he killeth him, A. is accessory to the murder." See, also, Roscoe on Crim. Ev. 170, 171.

Judgment affirmed.

BANKING-MISMANAGEMENT BY OFFICERS ACTION BY STOCK

HOLDERS FOR.

(New Jersey Supreme Court. November Term, 1882.)

CONWAY V. HALSEY.

An action will not lie by a stockholder in a national bank against the president and directors for their neglect and mismanagement of the affairs of the bank, whereby insolvency ensued and the stock became - worthless.

DEMURRER.

Action against the directors of the Mechanics' National Bank of Newark, alleging that by reason of their negligence the cashier was enabled to make away with the entire capital of the bank, whereby it became insolvent, and the stock worthless. The plaintiff was a stockholder.

BEASLEY, C. J., in delivering the opinion of the court, said:

Since the decision in the case of Smith v. Hurd, reported in 12 Met. 371, and which occurred in the year 1847, I do not find that it has anywhere been doubted that an action will not lie in behalf of a stockholder in a corporation against its directors for their negligence in so conducting its affairs that its capital had been impaired or lost and the shares of its stock in that manner rendered worthless. That judgment, with respect to its constituent facts, was identical with the transaction described in the present declaration, for the complaint in that instance was that the directors of a corporate company had by their malfeasance in delegating the whole control of its business to its president and cashier occasioned the waste and loss of its entire capital. The adjudication was rested on gen. eral principels which lie at the basis of all corporate existence. These were, in substance, the following, viz: That there is no legal privity between the holders of shares in a corporation, in their individual capacity, on the one side, and the directors of such company on the other; that the directors are not the bailees, agents, or trustees of such several stockholders; that the corporation is a distinct person in law, in whom all the corporate property is vested, and to whom all its agents and officers are responsible for all torts and injuries diminishing or impairing its property; that the individual members of the company have no right or power to intermeddle with the property or concerns of such company, or to call any agent or officer to account, or to discharge them from any liability; that the injury done to the capital by wasting it is not, in the first instance, nor necessarily, a damage to the stockholders; that all sums which could in any form be recovered on that ground would be assets of the corporation, to be applied in the first instance to the payment of debts, the surplus only being distributable among the stockholders, and- that it is therefore only an indirect, contingent, and subordinate interest in damages so to be recovered that is vested in share-holders. These are the main grounds leading to the decision in the case referred to, and such grounds are so plainly just and reasonable that they appear to have been adopted in each of that series of authorities on the subject that are to be found by a reference to any of the text-books. Thompson on Liability of Directors, 351; Field on Corp. § 3.3. The legal effect of the

doctrine thus established is that those acts of the officers and agents of the corporation which diminish or destroy the capital of the company are direct injuries to the corporate body, and that it only can seek reparation for such wrongs. And in such cases, if the directors or other principal officers are the wrong-doers, or if not being thus implicated they refuse to promote the requisite suit, a stockholder acting for himself, and the other stockholders and for the company, may call such delinquent officials to account in a court of equity. The theory is that given under the conditions the corporation is entitled to indemnification, and that when this is effected the stockholder ceases to be a loser. As to the right of the shareholder to become the actor in equity to repair a corporate injury, when the directors refuse to perform such function, see the case of Trenton Bridge v. Trenton City Bridge, 2 Beas. 46. Demurrer sustained.

66

DEATH-DAMAGES FOR, NOT ASSETS OF ESTATE.
(Kansas Supreme Court.)

PERRY v. ST. JOSEPH, ETC., R. R. Co.

The statutory right of action for death by wrongful act, is not an "9 asset of the estate of the decead. Therefore, if it is essential to the grant of letters testamentary, that the deceased should either have been a resident of the county, or should have had assets therein, the grant of letters upon the estate of a non-resident, who had no other assets in the county, is void.

ERROR, to the District Court of Doniphan County.

HORTON. C. J. This action was brought by the plaintiff as administrator of the estate of Susan B. Snyder, deceased, whose death was alleged to have been caused by the carelessness and negligence of the St. Joseph and Western Railroad Company, and was based upon § 422 of the code.

Upon the demurrer to parts of the answer filed by the defendant two questions are presented: First, whether the term "estate" as used in § 1, ch. 37, Comp. Laws of 1879, including a claim for damages for causing the death of the intestate under § 422 of the code; second, if the term "estate" embraced assets only of the intestate, that is, property, rights of choses in action held by or belonging to the intestate at the time of her death, and which are subject to he appled by the

administrator to the payment of debts, whether in an action of this character it can be shown as a defense that the probate court had no jurisdiction to issue letters of administration on the estate of the deceased. It seems to be conceded in the argument of counsel that the deceased left no estate in the County of Doniphan, unless the claim for damages for causing her death under § 422 may be denominated assets of the deceased, within the meaning of the statute authorizing the granting of letters of administration in this state. § 1, ch. 37 Comp. Laws, 1879, reads: "That upon the decease of any inhabitant of this state letters testamentary or letters of administration on his estate shall be granted by the probate court of the county in which the deceased was an inhabitant or resident at the time of his death and when any person shall die intestate in any other state or county, leaving any estate to be administered within this state, administration thereof shall be granted by the probate court of any county in which there is any estate to be administered, and the administration which shall be first lawfully granted in the last mentioned case shall extend to the estate of the deceased within the state, and shall exclude the jurisdiction of the probate court in every other county." § 422 of the code provides: "When the death of one is caused by the wrongful act or omission of another, the persenal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action, had he lived, against the latter for an injury for the same act or omission. The action must be commenced within two years. The damages can not exceed $10,000 and must inure to the exclusive benefit of the widow and children if any, or the next of kin, to be distributed in the same manner as personal property of the deceased." In the subsequent sctions of chapter 37 "estate" in § 1, evidently refers to and includes only the goods, chattels, moneys, and real estate, rights and credits of the dec as 'd, or in other words, the as-ets of the deceased. As the deceased was not an inhabitant or resident of Doniphan County at the time of her death, unless the action given by said § 422 is assets, the Probate Court of Doniphan County had no jurisdiction to issue letters of administration on her estate, or to appoint the plaintiff the

administrator. Now the action given by said section is for causing the death by a wrongful act or omission in a case where the deceased might have maintained an action had she lived, for an injury by the same act or omission. The right of compensation for the bodily injury of the deceased, which died with her, remains extinct. The right of action created by the statute, is founded on a new grievance, viz: causing the death, and is for the injuries sustained thereby by the widow and children or next of kin of the deceased, for the damages must inure to their exclusive benefit. They are recovered in the name of the personal representative of the deceased, but do not become assets of the estate. The relation of the administrator to the fund when recovered, is not that of the representative of the deceased, but a trustee for the benefit of the widow and children or next of kin, and the action is for their exclusive benefit. If no such person existed it could not be maintained. R. R. Co. v. Swayne's Administrator, 26 Ind. 477. The administration law of Kansas contemplates that when a person dies intestate in any other state or country than Kansas, in order to authorize the granting of letters testamentary or letters of administration, the deceased must have left an estate to have been administered within this state, and that estate must be something of a tangible nature to pay the costs and expenses of administration and the debts of the intestate if any exist. The money recovered by the administrator in an action by § 422 could not be used for the costs and expenses of administration or to satisfy the debts of the creditors of the deceased, and an action based upon this statute is not an "estate or assets" within the act respecting executors and administrators. Ch. 37, Comp. Laws of 1879, 408; Railway Co. v. Cutter, 16 Kan. 568.

If the deceased was not an inhabitant or resident of this state at the time of her death, and if she left no estate to be administered within this state, and none come into it afterward, then the Probate Court of Doniphan had no jurisdiction to issue letters of administration on the estate of the deceased or to appoint the plaintiff her administrator, and all its acts in doing so are void in toto. It has been decided in many cases that administration granted on the estate of a person not really dead is totally void. Stephenson v. Saperior Court,