Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/578

 § f)f)0.] THE LAW OF PRIVATE CORPORATIONS. [CHAP. IX. corporate, 1 to permit the holder of partially paid-up subscriber shares, or shares to the ownership of which individ- ual liability attaches, to withdraw in any way not authorized by the constitution of the corporation. Such per- mission is plainly ultra vires, and will ordinarily affect the rights only of those assenting to it. 2 The question, whether the release or withdrawal of a shareholder is valid, may arise between the withdrawing shareholder and the corporation ; or formally be- tween such shareholder and other shareholders; 3 or between such shareholder and creditors of the corporation ; 4 or, finally, as is frequently the case, between such shareholder and a re- ceiver or assignee of the corporation when insolvent, who rep- resents creditors as well as shareholders. 5 § 550. A leading English case in point is Spackman v. Evans. 6 There the directors granted to a dissenting share- holder leave to retire from the company on conditions which they deemed prudent and advantageous to be granted in his case, but which were not in accordance with the deed of settle- ment. The shareholder performed the conditions, his name was for years removed from the list of shareholders, the company changed its business without his knowledge, and dividends were received, in which he did not participate. Nevertheless, it was held that his name should be inserted in the list of contributories on the final winding up of the com- pany. 7 So in Tuckerman v. Brown, 8 where for the purpose of increas- 1 See Maun v. Cook, 20 Conn. 178, 188. 2 See Whitaker v. Grummonrl, 68 Mich. 249, a case tending towards recognizing a power in directors to compromise a subscription. The case held that shareholders who complained were under the circum- stances estopped. 3 See § 779. 4 As in Slee v. Bloom, 19 Johns. (N. Y.) 450; Chicago B'ld'g & M'f'g Co. v. Summerous, 101 Ga. 820. 5 E. gr., as in Upton v. Tribilcock, 91 U. S. 45. 6 L. R. 3 H. L. 171. 558 7 The decision in Spackman v. Evans is perhaps extreme, and Lords St. Leonard and Rom illy dissented. In this case the real rights demand- ing the insertion of defendant's name as a contributory were those of the shareholders who had not consented to his withdrawal (though they might have been estopped by their laches) and those of creditors. In such cases, however, the rights of creditors seem to be less regarded in England than with us. See Dix- on's Case, L. R. 5 Ch. 79. 8 33 N. Y. 297.