FROM GRAFTON CIRCUIT COURT.
SMITH, J.
This information is brought to inquire by what right these two defendants demand and take tolls of persons crossing the Connecticut river upon the Lyman bridge in Lebanon. In their answer they set forth a charter granted by the legislature to the Lyman Bridge Company in 1836, and that they by purchase have secured to themselves a transfer of all the shares into which the capital stock was divided. The defendants, then, compose the corporation, and no other persons have any interest or rights therein as stockholders. If nothing further appeared in the answer, the defendants would present a complete answer to the charge of usurpation made in the information. But they further set forth, that by their charter the corporation is required to make returns to the superior court, as often as once in five years, of their receipts from tolls; that such accounts were rendered in 1837 and 1842, since which time none have been rendered, by reason of their ignorance of such requirement. They claim that the tolls received by them have never exceeded the rates established by the court, and they pray that they may now be permitted to render such accounts.
The neglect of the corporation to furnish such exhibits does not, by the terms of the charter, subject the corporation to a forfeiture of its franchise ipso facto. The omission makes the franchise "subject to forfeiture," — by which is meant that the forfeiture must be regularly proved and established upon proper proceedings instituted for that purpose. Until that is done, the corporation has the right, under its charter, to demand and receive tolls from persons passing over its bridge.
Two objections are raised to the sufficiency of the information: 1. That it does not ask for a forfeiture of the charter. 2. That it is bought against the stockholders of the corporation, and not against the corporation itself.
These objections cannot prevail. The information appears to be in the form generally used. See State v. Olcott, 6 N.H. 74; and in State v. Turnpike, 15 N.H. 162, where no such objection was raised. The respondents must disclaim, or justify. At common law, when the respondent disclaimed, judgment was rendered immediately for the crown. If the respondent justified, judgment was rendered for the allowance of the franchise.
In People v. Railroad, 15 Wend. 113, it is laid down that when the information has for its object to oust the defendants from acting as a corporation, and to test the fact of their incorporation, it must be filed against individuals. When the object is to effect a dissolution of a corporation which has had an actual existence; or to oust such corporation of some franchise which it has unlawfully exercised, the information must be filed against the corporation.
The offer of the defendants to make the returns required by their charter, and their request to be permitted to do so, is in effect a confession that their franchise is subject to forfeiture on account of their neglect in this respect. They, in fact, allege reasons why the forfeiture ought not in equity to be enforced, as they may under sec. 9, ch. 225, Gen. Stats.
The neglect of the defendants, for more than thirty years, to make the return required by their charter, presents a very strong reason for decreeing a forfeiture of their franchise. By the terms of the act itself much neglect renders their charter subject to forfeiture. But, inasmuch as the defendants pray to be admitted to make such returns, I think such permission should be given. Upon an examination thereof, and a hearing, the court can determine whether "in equity and good conscience a decree of forfeiture should be made." Gen. Stats., ch. 225, sec. 9. We cannot sustain the demurrer, since the defendants ask to be heard in equity.
CUSHING, C. J., and LADD, J., concurred.
Remanded to the circuit court for a hearing in equity.