ed as a proprietor of the new stock, and entitled to his proportion of the dividends upon it; but a stranger, who should be admitted in his stead, would acquire a vested interest in the stock, which could not be defeated; for the registry of owner

"This view of the subject avoids the objection relied on for the defendants, resting on the circumstance, that the shares of this bank are, by the act of incorporation, to be numbered in sums of one hundred dollars each; from which it seems to have been understood that the increase of stock, being to be made by additional shares, required a new subscription. But the legislature could not intend, in providing this mode of enumeration, to change entirely the nature of trust established by the incorporation; and to establish the security of the members first engaging in it, in the beneficial interest and property they might acquire in the institution.

"Another objection has been stated in the argument for the defendants, which requires some consideration. It is, that the act of incorporation provides no means of enforcing payment from the stockholders, whenever an increase of stock should be agreed on.

"The act provides that the stockholders shall, at their first meeting, determine the amount of payments to be made on each share, and the time when each payment shall be made. And in a previous clause they have authority to ordain, establish, and put in execution by-laws, ordinances, and regulations for the government of the corporation, the prudent management of their affairs, &c. If the power of increasing their stock continued after the dissolution of their first meeting, the power necessarily carried with it the authority of the stockholders, to appoint the payments on each share, and to enforce them by their by-laws. A vote to increase the capital stock, if it was not the creation of a new and disjointed capital, was in its nature an agreement among the stockholders to enlarge their shares, in amount or in number, to the extent required to effect that increase. The shares first paid in became the first instalment of the increased capital; and the subsequent payments might be reasonably enforced, by providing for a forfeiture of delinquent shares, to be sold and accounted for to the stockholder; the proceeds to be carried to his account, deducting the instalments, or additional payments required. This course has been, I have some reason to believe, adopted by other similar institutions for a like purpose.

"I do not mean to say, however, that a subscription, submitted to the consideration of every stockholder, without any exception, or any attempt at exclusion, might not be equally just, and under some circumstances as expedient as a by-law to forfeit delinquent shares. The operation of such a subscription, if it made any difference, would be a relinquishment of shares by the proprietor; but in that case the shares relinquished ought to accrue

ship, kept by the officers of the bank, is to them the only evidence of it; and to the individual stockholder his evidence is his certificate.1

Every proprietor of the old stock may relinquish his right to become interested in the new; or his right may be forfeited by not being claimed; and in either case, strangers or other stockholders may be admitted in his stead. And, we may add, that though an original stockholder is entitled to a new stock, yet he is not compelled to take it.2

$12. A corporation has no power to assess the shares of a member, unless such power has been conferred by charter, or unless the members have obligated themselves by some act or promise on their part to pay assessments. Chief Justice Parsons, in the case of Andover and Medford Turnpike Corporation v. Gould,' thought that, although the power to make assessments was not expressly given by the act of incorporation, it would result from a clause in the act which enacted, that the shares of delinquent proprietors might be sold. From such a clause, he said, it might be inferred, that the corporation had a right to agree on an assessment of the shares. But he considered it to be a rule founded in sound reason, that when a statute gives a new power, and at the same time provides the means of executing it, those who claim the power can execute it in no other manner; and therefore, the mem

to the benefit of the institution. If from the progress of the institution, and the expenses incurred in it, any advance upon the additional shares might be obtained in the market, this advance upon the shares relinquished belonged to the whole; and was not to be disposed of, at the will of a majority of the stockholders, to the partial benefit of some, exclusive of others.

"The contrary course, taken in this instance, was, in my opinion, an unjust transfer of shares, belonging to the plaintiff, to another; or, at least, a refusal to transfer them to the right owner."

Per Sedgwick, J., in Gray v. Portland Bank, 3 Mass. R. 385, 388; and see Titcomb v. Union Marine Fire Ins. Co. 8 Mass. R. 326.

Gray v. Portland Bank, sup.

6 Mass. R. 40.

bers of a corporation are not liable to be proceeded against personally in a suit by the company for a legal assessment, unless there has been a promise on their part to pay it. If there be no promise to this effect, the only remedy by the corporation is that prescribed by the charter.' Where the trustees of a religious corporation in the State of New York, with power to regulate and order the renting of pews therein, assessed the pew of the defendant, and sued him in personam to recover the same, the court decided that he was not chargeable, upon an implied promise to pay, in consequence of the occupation of the pew, unless there were some special grounds from which to infer a contract and promise to pay. In one case the evidence offered of the defendant's engagement to pay assessments was in the following words; "We, the subscribers, desirous of having the same (a turnpike) completed as soon as possible, agree to take in said road the number of shares set against our names." This was considered insufficient to maintain assumpsit for an assessment against a delinquent stockholder.3

4

So, in Massachusetts, in an action by the New Bedford and Bridgewater Turnpike Corporation v. Adams, the plaintiffs claimed to recover the amount of certain assessments for the expenses incurred in making the turnpike. The writing, by which it was contended the defendant was liable, was one which was subscribed by him and others, and was as follows; "We, the subscribers, desirous to promote the building of a turnpike and bridges from New Bedford to Weymouth, comprehended in a petition signed by W. Roach, Jr., and others, granted by the honorable legislature in their present session, have divided the expense of building said turnpike and bridges

Taunton, &c. Turnpike v. Whiting, 10 Mass. R. 327; Franklin Glass Co. v. Alexander, 2 New Hamp. R. 380.

First Presbyterian Congregation v. Quackenbush, 10 Johns. (N. Y.) R. 217. The law implies a promise on the part of every individual of a corporation to pay all sums due by their rules or by-laws. 2 S. Carolina Con. R

215.

36 Mass. R. 40.

4 8 Mass. R. 138.

The court consid

from Thompson's pond in Middleborough to communicate with the Braintree and Weymouth Turnpike in the town of Weymouth, into five hundred shares, and engage to take the number of shares affixed to our names." ered, that the defendant by signing this agreement simply engaged to become proprietor of a certain number of shares, and that the only remedy, which the corporation had for nonpayment of assessments, was to sell the shares.

The case of Franklin Glass Co. v. White,' is a still stronger case against the right of incorporated companies to recover from the stockholders the amount assessed upon their shares, when the act of incorporation authorizes a sale of the shares, in case of a neglect to pay the assessment. In this case, the defendant became owner of one share of the capital stock by purchase. The company, at three several times, made assessments upon the shares, and at each time the defendant was present at the meetings, and acted as a stockholder; and often before expressed his desire to have money assessed, to pay the debts of the company; and he, moreover, afterwards expressed his satisfaction with what had been done. It was held notwithstanding, that the sale of the shares, pursuant to the act, was the only remedy of the company. The counsel for the plaintiff contended that there was a distinction between this case and a turnpike company; that the making and maintaining a turnpike road was an affair of public concern and convenience, seldom entered upon or prosecuted for the sake of the profit the undertakers would realize; and that they could not lawfully effect their object without authority from the legislature; whereas a company of manufacturers could not be presumed to have any object in view, but their private or personal gain; they might carry on their business without legislative interference; and they asked for an incorporation merely for greater convenience in managing their affairs. The court were not able, however, to perceive a sufficient distinction between the case before them and the cases above mentioned, to justify them in giving a different decision; as the

1 14 Mass. R. 286

legislative provisions relative to manufacturing corporations. for the sale of the shares of those proprietors, who are delinquent in paying their assessments, were nearly in the same. words as those used in the general act respecting turnpike corporations. In a case where one expressly engaged to take certain shares in a turnpike road, and to pay all assessments thereon, and afterwards the course of the road was altered by law; it was held, that he was not bound by his engagement to pay the assessments, notwithstanding he had acted in several offices of the corporation, and had, as one of the directors thereof, petitioned the legislature for such alteration.'

13. We now come to the cases in which it was considered, that the party made himself personally liable by his promise. In the case of Worcester Turnpike Corporation v. Willard, the court decided, that the defendant, having subscribed a contract by which he engaged to take one share, and to pay all legal assessments, it was a personal engagement to pay assessments, which gave to the corporation a cumulative. remedy against Willard, in addition to the remedy provided by the statute, to enforce the payment of assessments by a sale of shares. In the case of Taunton and South Boston Turn. Company v. Whiting, the case was where one subscribed an engagement to pay on demand to J. G. or order, "all assessments that may at any time be made by said corporation for the purpose of laying out said road, making and keeping the same in repair, and for damages to individuals for land," &c. It was holden, agreeably to the above case of Worcester Turn. Corporation v. Willard, that the defendant having expressly promised to pay all assessments, he was liable, in an action of assumpsit, brought by the corporation for the assessments. Where one subscribed for certain shares

3

1 Middlesex Turnpike Corporation v. Swan, 10 Mass. R. 384; and see Middlesex Turnp. Corp. v. Locke, 8 Mass. R. 268; Union Locks and Canals v. Towne, 1 New Hamp. R. 44.

25 Mass. R. 80.

3 10 Mass. R. 327.