a corporation is not dissolved by merely neglecting to exercise its corporate powers;1 nor by the loss of an integral U. S. 308, 310, the court saying. "We are of opinion that the question of forfeiture could only be established by a direct proceeding on the part of the public authorities, and a decision to that effect in a proper tribunal, and can not be made an issue for the first time in the trial of this question of private right between the present parties;" Erie & N. E. R. Co. v. Casey, 26 Pa. St. 287, 301; Commonwealth v. Pittsburg &c. R. Co., 58 Pa. St. 46; La Grange &c. R. Co. v. Rainey, 7 Coldw. (Tenn.) 420; Baker v. Backus, 32 Ill. 79; In re Long Island R. Co., 19 Wend. 37; Ward v. Sea Ins. Co., 7 Paige, Ch. 294; Barclay v. Talman, 4 Edw. Ch. 123; Kincaid v. Dwinnelle, 59 N. Y. 548; State v. Real Estate Bank, (1843) 5 Ark. 595; s. c. 41 Am. Dec. 109, where the court said, "Such a dissolution can only be effected by judicial trial and judgment, and so it has been held even where the act has provided that in default of fulfilling the condition the corporation should be dissolved; "Slee v. Bloom, 5 Johns. Ch. 366; Terrett v. Taylor, 9 Cranch, 51; Crump v. United States Mining Co., 7 Grat. 352; Connecticut &c. R. Co. v. Bailey, 24 Vt. 465; Selma &c. R. Co. v. Tipton, 5 Ala. 805; Bohannan v. Binns, 31 Miss. 355; Smith v. Plank Road Co., 30 Ala. 650; Myers v. Manhattan Bank, 20 Ohio, 283; Spencer v. Champion, 9 Conn. 536; National Pahquioque Bank v. First National Bank of Bethel, 36 Conn. 325; Atlanta v. Gate City Gas Light Co., 71 Ga. 106; Deitweiler v. Breckenkamp. 83 Mo. 45; Perrin v. Granger, 30 Vt. 595; Chesapeake & O. Canal Co. v. Baltimore & O. R. Co., (1832) 4 Gill & J. 1, 122, declaring that a cause of forfeiture can only be enforced by scire facias, or a quo warranto, issued at the instance of the government creating the corporation, and can not be taken advantage of incidentally, or in any other way, or by any individual;" Pentz v. Citizens' Fire &c. Ins. Co., 35 Md. 73; Pearce v. Olney, 20 Conn. 544; Trustees of Vernon Soc. v. Hills, 6 Cow. 23; s. c. 16 Am. Dec. 429; Folger v. Columbian Ins. Co., 99 Mass. 267; s. c. 96 Am. Dec. 747, and note, 755; Heard v. Talbot, 7 Gray, 113, 119, 120; Pixley v. Roanoke Navigation Co., 75 Va. 320; State v. Fourth N. H. Turnpike Co., 15 N. H. 162; s. c. 41 Am. Dec. 690; Arthur v. Commercial &c. Bank, 9 Sm. & M. 394; s. c. 48 Am. Dec. 719; Williams v. Lowe, 4 Neb. 382; Kennebec &c. R. Co. v. Kendall, 31 Me. 470; State v. Central Ohio Mut. Relief Assoc., 29 Ohio St. 399; State v. New Orleans Gas Light Co., 2 Rob. (La.) 529; Westcott v. Minnesota &c. Co., 23 Mich. 145; State v. Vincennes University, 5 Ind. 77; Barren Creek Ditching Co. v. Beck, (1884) 99 Ind. 247, 250, saying "The State alone has the right to insist upon a forfeiture and it may waive this right;" Enfield Toll Bridge Co. v. Connecticut River Co., 7 Conn. 28; Bank of Missouri v. Merchants' Bank of Baltimore, 10 Mo. 123; Atchafalaya Bank v. Dawson, 13 La. Ann. 497. 1 2 part; nor by the resignation of all the officers and the omission to elect others; nor by a sale of its property in good faith and for a valuable consideration; nor, generally, by the failure to perform any act prescribed in the charter. Until, therefore, a judgment upon a quo warranto, or a decree of court has declared a surrender of the corporate franchises and the dissolution of the corporation, any creditor is at liberty to proceed by suit against the corporation in the same manner as if the alleged surrender by non-user had not occurred; so declares that the lapse of time required for that purpose has never been decided, and reiterates the doctrine that the question "can not be tried, so as to be conclusive upon the corporation, in this collateral or incidental manner." 1 Lehigh &c. Co. v. Lehigh C. & N. Co., 4 Rawle, 9; s. c. 26 Am. Dec. 111. 2 Evarts v. Killingworth, 20 Conn. 447; Pearce v. Olney, 20 Conn. 543. 3 Hill v. Fogg, 41 Mo. 563. 4 People v. President &c. Manhattan Co., 9 Wend. 351, 382; Stoop v. Greensburgh &c. Co., 10 Ind. 47. Thus the New York Act of 1875 directs that the commissioners should "provide for the release and forfeit ure of all rights and franchises" of railway companies in case of non-completion of the roads within the time and upon the conditions therein provided. And in the case of In re Kings County Elevated R. Co., (1887) 105 N. Y. 97, decided under this act, the court said: "This, as we have seen, was done in the very language of the act, and assuming with the respondent that the default existed, we are to inquire whether the property right or franchise, then in the company, was by that circumstance and without further act done by any one, or judgment of any court, transferred to the supervisors of Kings County, or at also, judgment against the corporation, and an execution and sale of the corporate property under it, before any such proceedings are instituted, will be valid. And one stockholder in a corporation can not recover from another stockholder, who has taken and sold the corporate property, the value of his proportionate share of the property sold, on an allegation that the corporation has ceased to do business, although the averment may be strictly true; for its dissolution must be first judicially declared before its property will vest in the individual stockholders; so, also, a forfeiture must be judicially declared before the same franchise can be granted to others." When, however, the language used shows that the legislature intended to make the continued existence of the corporation depend upon its compliance with a particular provision of the act, in case of non-compliance, its rights are to be deemed forfeited and terminated, whether the corporation is organized under a general or special law. In such a case the statute executes itself, and the non-existence of the corporation may be alleged in opposition to an application by it to appropriate land under the law authorizing the taking of private property for public use." 1 Mickles v. Rochester City Bank, 11 Paige, Ch. 118. 2 Hodsdon v. Copeland, 16 Me. 314. 3 Regents of the University of Maryland v. Williams, 9 Gill & J. 365; s. c. 31 Am. Dec. 72. 4 Brooklyn Steam Transit Co. v. Brooklyn, 78 N. Y. 524; In re Brooklyn, W. & N. R. Co., 72 N. Y. 245. In People v. National Savings Bank, (Ill. 1887) 11 N. E. Rep. 170, it was held that where an act of the legislature incorporating a banking company, passed March 20, 1869, provides that certain persons, etc., "are hereby incorporated," etc.; that the capital stock "shall be $50,000," etc.; that, "before said corporation shall commence business, the stockholders shall pay the several amounts subscribed in full;" and that the "act shall be void, unless said corporation shall organize and proceed to busi- § 50. The fact of forfeiture not to be collaterally tried.— It is well settled that acts or omissions on the part of a corporation which would subject its charter and franchises to forfeiture in proceedings against it instituted by the State for the direct purpose of enforcing the penalty, can not be collaterally pleaded in suits between the corporation and other persons. The only competent evidence to prove a forfeiture is the judgment of a court directly on the point. Since the people, for whose benefit corporations are supposed to be created, may in their sovereign capacity waive a cause of forfeiture, it does not lie in the mouth of any private citizen to insist upon 1 Southern Pacific R. Co. v. Orton, (1887) 32 Fed. Rep. 457; Briggs v. Cape Cod Ship Canal Co., (1884) 137 Mass. 71; Rice v. National Bank, 126 Mass. 300; Greenbrier Lumber Co. v. Ward, (1887) 30 W. Va. 43; State v. Butler, (1886) 15 Lea, 104; Asheville Division v. Aston, (1886) 92 N. C. 578; Atlanta v. Gate City Gas Light Co., (1885) 71 Ga. 106. In Riddle v. Proprietors of Locks and Canals, 7 Mass. 169, it was held that the plaintiff, averring a loss arising from the failure of the defendants to dig their canal to the depth required by their charter, and from their failure to cleanse the channel from deposits of silt, could not recover on account of the former, but that he was entitled to damages for injuries arising through their neglect to keep the canal free from obstructions. See also Belcher Sugar Refining Co. v. St. Louis Grain Elevator Co., 10 Mo. App. 401. Toledo & A. A. R. Co. v. Johnson, (1883) 49 Mich. 148; Barren Creek Ditching Co. v. Beck, (1885) 99 Ind. 277; Logan v. Vernon, G. &c. R. Co., (1884) 90 Ind. 552; Thompson v. New York &c. R. Co., 3 Sandf. Ch. 625; Central Crosstown R. Co. v. Twenty-Third Street Ry. Co., 54 How. Pr. 168; In re New York Elevated R. Co., 70 N. Y. 327. Thus where the defendant pleaded the fail ure of a canal company to perform its duty in keeping the canal in repair, as a defence to an action to recover toll, the court said: “If the canal was opened, and toll claimed, and the public did not interfere, and the defendant used the canal, he thereby subjected himself to the payment of the toll. By demanding the toll the plaintiff claims to have complied with the conditions and provisions of the act of incorporation; and the defendant, by using the canal, is estopped to deny the right of the corporation to the toll, although it might be proceeded against by quo warranto for the repeal and dissolution of the charter, or by indictment for a misdemeanor in not keeping the canal in repair." Proprietors of Quincy Canal v. Newcomb, 7 Metc. 276. New Jersey Southern R. Co. v. Long Branch Commissioners, 39 N. J. 28; Crump v. United States Mining Co., 7 Gratt. 352; Hamilton v. Annapolis R. Co., 1 Md. Ch. 107; Connecticut &c. R. Co. v. Bailey, 24 Vt. 465; Irvine v. Lumberman Bank, 2 Watts & Serg. 204; Dyer v. Walker, 40 Pa. St. 157; West v. Carolina Ins. Co., 31 Ark. 476; Beach on Railways, $$ 589, 590. 2 Cleveland &c. R. Co. v. Speer, 56 Pa. St. 325; s. c. 94 Am. Dec. 84; an enforcement of the penalty incidentally to the main issue of his case. On the other hand the corporation cannot be permitted to plead its own abuse of its franchises or failure to perform its public duties, for the purpose of avoiding any obligation by which it may be bound. Accordingly, a plea involving a forfeiture of the charter is open to demurrer, or may be treated as a nullity by the court.3 Even where, through non-compliance with the conditions of its charter or the general act under which it claims to be organized, a company has never acquired a de jure corporate existence, a person may so deal with it as to be estopped to deny the legality of its incorporation.* Trustees of Vernon v. Hills, 6 Cow. peake & O. Canal Co. v. Baltimore 23; s. c. 16 Am. Dec. 429. & O. R. Co., 4 Gill & J. 1. 1 Greenbrier Lumber Co. v. Ward, (1887) 30 W. Va. 43, where the corporation had failed to pay its license tax, and holding that the rule in this respect had not been altered by W. Va. Acts of 1885, ch. 20, § 8. In Heard v. Talbot, 7 Gray, 115, it was said: 'It would be a great anomaly to allow persons not parties to a contract to insist on its breach and enforce a penalty for its violation, but it would be against public policy, and lead to confusion of rights if corporate powers and privileges could be disputed and defeated by every person who might be aggrieved by their exercise. Therefore it has often been held that a cause of forfeiture, however great, cannot be taken advantage of or enforced against corporations collaterally or incidentally, or in any other mode than by a direct proceeding for that object in behalf of the government." See also Rex v. Amery, 2 Term Rep. 515; Rex v. Pasmore, 3 Term Rep. 199; Terret v. Taylor, 9 Cranch, 43; Slee v. Bloom, 5 Johns. Ch. 366; s. c. 19 Johns. 456; Trustees of Vernon v. Hills, 6 Cow. 23; McLaren v. Pennington, 1 Paige, Ch. 102; Chesa 2 Dyer v. Walker, 40 Pa. St. 157. 3 Dyer v. Walker, 40 Pa. St. 157. 4 Broadwell v. Merritt, (1885) 87 Mo. 95; Smith v. Sheely, 12 Wall. 361; Kansas City Hotel v. Hunt, 57 Mo. 126; Farmers' & M. Ins. Co. v. Needles, 52 Mo. 17; Ohio & M. R. Co. v. McPherson, 35 Mo. 13; Stoutimore v. Clark, 70 Mo. 471; National Ins. Co. v. Bowman, 60 Mo. 252; St. Louis v. Shields, 62 Mo. 247. In a recent case in Kentucky it was held that an association which has filed articles of incorporation for record in the office of the clerk of the county court, as required by Gen. St. Ky. ch. 56, may begin business, and its acts are valid, though it has failed to comply with the further requirement to file a copy of its articles with the Secretary of State within three months. Such failure is available only in a direct proceeding to annul the franchise. Portland & G. Turnpike Co. v. Bobb, (Ky. 1889) 10 S. W. Rep. 794. In an earlier case in the same State, in view of the fact that under the statute above cited a corporation is allowed to commence business as soon as its articles are filed in the county |