[Cen. Ag. and Mech. Asso. v. Ala. Gold Life Ins. Co.] time of its dissolution, to the extent of their stock."-Rev. Code, § 1860. We shall not inquire, whether this statute is modified, or repealed, or whether its modification or repeal, as to this association, was intended by the clause of the second section of the curative statute to which we have referred, touching the liability of stockholders. It is possible a field for the operation of that clause may be found, without bringing it in conflict with the statute. If that be not true, the clause is repugnant to, and violative of the second and third sections of the thirteenth article of the constitution of 1868, which fixed on each stockholder in a private corporation the liability the statute imposes--a liability for the debts of the corporation to the amount of his stock.

The liability is contingent,-dependent on the dissolution of the corporation. That is the event rendering it capable of enforcement.-Smith v. Huckabee, 53 Ala. 191. It was, perhaps, true at common law, that a corporation was capable of dissolution only by abuse or misuser of its franchises, and a consequent judicial forfeiture; by surrender, accepted of record; or by the death of all its members.-2 Kent, 378; Corporation of Colchester v. Seaber, 3 Burr. 1866. This doctrine,.it has often been said, can be of very limited application to the private corporations in this country, organized for commercial, or trading, or business purposes, which are but little more than special partnerships. In respect to these corporations, liability for the debts of the corporation due at the time of dissolution being imposed on the members, it has been repeatedly held, that a dissolution according to the modes of the common law is not intended. Whenever there is a practical dissolution, so far as the rights and remedies of creditors are concerned whenever the corporation becomes "a nominal, inert body," its property and funds gone, and it is reduced to insolvency, rendering legal remedies against it fruitless and unavailing-the liability of the stockholder or member becomes absolute, and the right and remedy of the creditors to enfore it accrues. -Thompson on Liability of Stockholders, § 267. In the leading case of Slee v. Bloom, 19 Johns. 477, the facts of which are not very dissimilar to the facts of this case, said Chief-Justice SPENCER: "In point of good sense, this corporation was dissolved, within the meaning and intent of the act, as regards creditors, when it ceased to own any property, real or personal, and when it ceased, for such a space of time, from doing any one act manifesting an intention to resume their corporate functions. The end, being and design of the corporation, were completely determined; and if even it had the capacity to re-organize, and re-invigorate itself, the case has happened, when, as relates to its creditors, it is dissolved."

[Cen. Ag. and Mech. Asso. v. Ala. Gold Life Ins. Co.] The insolvency of the association is not a disputed fact. All its visible, tangible property had been sold from it, under the mortgage to the appellee. It was without money; and if it had any assets, they consisted of unpaid subscriptions for its stock, which were not available; and if they had been, would not have relieved its embarrassment, or enabled it to resume operations. For all practical purposes, though it may have been possible for the association to re-organize and re-invigorate itself, as to creditors it was dissolved, within the meaning of the statute. Any other doctrine would be unreasonable, and would render the statute, and the liability it imposes, incapable of affording the creditors of corporations the benefit and security intended.

When Hooper proposed the transfer of his stock, the debt to the appellee had been contracted, and the association had become insolvent. To the transfer, the association refused assent, and on its books Hooper remained in the relation, and with the rights of a stockholder. Without now discussing whether, under any circumstances, a stockholder may, by a transfer of his stock, relieve himself from liability to existing creditors, we are satisfied the facts do not show a bona fide transfer which can or ought to be supported against them. The solvency of the transferree is not shown, and the circumstances, which are not neutralized by opposing evidence, point strongly to the conclusion, that the purpose was to relieve Hooper from the liability incurred to existing creditors. As to them, the transfer must be esteemed void.-Allen v. M. R. R. Co., 11 Ala. 451; Thompson on Liability of Stockholders, $215.

The remaining question, whether Weaver was a stockholder in the association, is one of fact, dependent on conflicting evidence, which seems to have been very carefully considered and weighed by the chancellor. We incline to concurrence in his conclusion, that the fair preponderance of the evidence supports the claim that Weaver, through the agency of Sturdevant, subscribed for the stock of the corporation. Whether this be the just conclusion or not, it is certain it can not be affirmed that there is a decided preponderance of evidence against it; and, of consequence, under the settled practice, the decree can not be disturbed.-Rather v. Young, 56 Ala. 94.

Affirmed.

[Comer v. Bankhead.]

Comer v. Bankhead.

Application for Mandamus to Warden of Penitentiary.

1. General rules for construction of contracts.-In the construction of a contract, the whole instrument should be considered in determining the meaning of any or all of its parts; the contract should be supported, rather than defeated; all parts should be so construed, if possible, as to give effect and validity to each; and all instruments should be construed contra proferentem-that is, against him who gives, or undertakes, or enters into an obligation.

2. Conduct of parties under contract.-The conduct of parties under a contract, constituting a practical construction of it given by both parties, is frequently a very important element in the interpretation of contracts which appear ambiguous.

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3. Contract with warden of penitentiary, for hire of convicts; warden's discretion as to delivery.-Under the contract between J. G. Bass, the late warden of the penitentiary, and J. W. Comer, by which the former hired to the latter one hundred of the convicts in the penitentiary, more or less, whom the hirer agreed to receive, “as may be directed by the said B., at the various jails, or at the walls of the penitentiary, free of charge to the State;" and by which it was provided that, in the event of C.'s failure to perform any of the duties imposed on him by the contract, "said contract may be terminated or annulled at any time, at the option of said B., or his successor in office, after giving due and fair notice, in writing, that the matter complained of has not been remedied;" the provisions which further declare that said convicts are to be delivered, from time to time, during the existence of this contract, at the sole option of the said B., or his successors in office," and that, "if the said B., or his successors in office, should make demand upon said C., by writing or verbal order, for any convict or convicts in his custody, the said Comer will at once deliver such convicts to the said B., or his successor in office,"―can not be construed as giving the warden a right, at his option and election, to refuse to deliver any convicts under the contract, and thereby avoid it; but were intended to reserve to him a sound discretion as to the delivery of particular convicts to C., or to other contractors, having in view the different kinds of business in which they were engaged, the capacity of the several convicts for any special labor, their character as desperate men or the reverse, and other like considerations; and also to secure the re-delivery of convicts, in cases of pardon, reversal of judgment, &c.

4. Same; hirer's right to enforce delivery.—Under the contract thus construed, this discretionary power being reserved to the warden, the hirer could not demand, as of right, that any particular or specified convicts should be delivered to him; and the most the court could do, under the contract, on the application of the hirer, "would be to compel the warden to exercise his discretion under the rules above suggested."

5. Same; term of hiring.-The warden has statutory power to contract, with the approval of the governor, for the hiring of the convicts for a term not longer than five years (Code, § 4536); but, under the contract in this case, which was "to take effect on the first day of January, 1881, and to terminate on the first day of January, 1882," the further provision declaring that it “may be continued from year to year, from date the

[Comer v. Bankhead.]

same takes effect, during a period of five years, provided said C. complies fully with its requirements," while reserving the privilege of renewal to the hirer, or making it optional with him, does not reserve to the warden a corresponding privilege; consequently, while the contract is valid for the year 1881, it is not binding as to any subsequent year.

6. Mandamus; not awarded when nugatory.-When this proceeding was commenced, in August, 1881, and when the Circuit Court sustained a demurrer to the petition. and when the appeal was taken, and when the cause was argued and submitted, the relator was entitled to relief, as herein above indicated; but, his rights under the contract having terminated on the first day of January, 1882, since past, the writ of mandamus will not be awarded.

APPEAL from the Circuit Court of ELMORE.

Tried before the Hon. JAMES E. COBB.

The appellant in this case, John W. Comer, filed his petition, addressed to the presiding judge of the circuit which includes the county of Elmore, praying a mandamus against John H. Bankhead, the warden of the State penitentiary at Wetumpka, requiring him to deliver to the petitioner the number of convicts to which he claimed to be entitled under a contract made with John G. Bass, the former warden. The contract between Comer and Bass, which was made an exhibit to the petition, was dated the 22d December, 1880, and approved by the governor on the 4th February, 1881. Its material provisions, so far as involved in this case, are stated in the opinion of the court. The petition alleged, that Comer did not have the full quota or percentage of convicts to which he was entitled under his contract with Bass; that Bankhead, since he had become warden, had delivered some convicts to Comer under his contract, but refused to deliver any more, and was delivering them to R. J. Thornton and others, with whom he had himself made contracts; and "that all of said convicts now in the possession of said Bankhead, or under his control as warden, can not be advantageously employed within the walls of the penitentiary, but only a small portion thereof can be so advantageously or profitably employed." A letter from Bankhead to Comer, dated May 27, 1881, and written in reply to a demand for the delivery of more convicts, was made an exhibit to the petition, containing these expressions: "You will remember that your pro-rata has been more than full for some time. I have recently made a contract with Dr. J. R. Thornton, to fill which I am now delivering all convictions." The prayer of the petition was, "that said Bankhead, as warden of the penitentiary, be commanded by the alternative writ of mandamus to deliver to your petitioner so many of the convicts now under his control as warden, as petitioner is entitled to claim and receive under his said contract with said Bass, and which, as hereinabove shown, he has failed to deliver to your petitioner, or to show cause, if he can, why he has not done so," &c.

[Comer v. Bankhead.]

The petition was sworn to before the judge of the City Court of Montgomery, on the 10th August, 1881; but it was not presented to Hon. JAMES E. COBB, the presiding judge of the fifth circuit, until the 20th October, 1881, and he thereupon ordered a rule nisi, or an alternative writ of mandamus, to issue as prayed. The defendant appeared, in answer to the writ, and demurred to the petition, and also to the alternative writ, assigning the following (with other) grounds of demurrer: 3. "That the delivery of convicts to the petitioner under said contract, as shown by the said ex ibit to the petition, was at the sole option of this respondent as warden, and he had the right, by the terms of said contract, to demand at any time the return to his custody as warden of any convicts delivered to the petitioner under said contract; and it appears from said contract that the petitioner did not acquire or secure any right to demand or retain the possession of any convicts, otherwise than at the discretion of this respondent as such warden." 4. That Bass, the former warden, "was not authorized by law to make any contract for the hiring of convicts, whereby such convicts would be placed beyond the custody, control and dominion of the warden, and to deprive the warden of such custody, control and dominion, and its exercise in such manner as, in his discretion as an officer of the government, the public good demands." 7. "That the object and purpose of said petition and alternative writ, as therein set forth, is to enforce said contract and its execution against the State of Alabama, through this defendant as one of the officers of the executive department, contrary to the constitution and laws of the State." 9. "That it appears from said petition and alternative writ that the matters and things therein alleged, and the relief thereby sought, are matters within the official discretion of this respondent as warden of the penitentiary, and in respect to which this respondent as such warden is not subject to the jurisdiction and control of this honorable court."

The court sustained the demurrer, dismissed the petition, and refused to award a peremptory mandamus; and its judgment on the demurrer is now assigned as error.

CLOPTON, HERBERT & CHAMBERS, with whom were RICE & WILEY, for appellant.-1. The warden of the penitentiary has express statutory power to make contracts for the hire of convicts, and the only restriction upon his power is as to the term of hiring, which can not exceed five years.-Code, § 4536. Such contract does not interfere with the general supervisory charge which he is required to exercise over all convicts employed outside of the prison walls; on the contrary, the statutory provisions requiring such supervision become a part of the