fendant was not liable to an action. It has been supposed that these two cases are in conflict with each other, but a careful examination of them will show that in both of them a promise to pay assessments, as well as to take shares, was considered as entitling the corporation to a cumulative and personal remedy. In the case of Willard it was conferred on the ground that he became a proprietor, in consequence of this collateral promise on his part. By his act of subscription—that is, after his subscription, to which he was invited pursuant to a vote of the corporation, and after their acceptance of his engagement, he must be understood to have received from them a certificate for the share he had subscribed, for he paid the first assessment upon it, and was therefore to be considered as having become a subscriber upon the terms proposed by his subscription. In the case of Collins, it was otherwise. After the corporation had been organized, and a part of the turnpike which was the subject of the subscription had been purchased and built, at the invitation of a person not employed by the corporation, or having no authority to engage in their behalf, Collins was induced to subscribe, upon a particular representation made to him as to what would be the effect of his engagement, and the amount of the assessments to which he would become liable. But before this proposal as it might be called on the part of Collins was accepted by the corporation, he thought fit to declare off, and he finally refused to take any certificate of shares, or to pay any assessments. The decision in this case was put upon this ground, and is not therefore in conflict with the case of Willard on the point under consideration.

§ 688. In New York the doctrine of personal liability in such cases of an express promise to pay, has been repeatedly decided. This question came before the court

at an early day;(a) and it was held that an express promise to pay the amount of shares subscribed in a turnpike company was a sufficient consideration upon which an action of assumpsit could be maintained. Although the act authorized the directors to call for and demand such sums so subscribed, under pain of forfeiture of their shares and all previous payments, it was held that the latter provision was designed as an additional security for the proportion of the shares which should remain unpaid, and to enable the company, by a decisive measure, to compel that prompt payment which the object of the institution required. That they had an election to adopt this expedient and exact the forfeiture, or to enforce the payment in the ordinary course by a suit on the original contract. This case was reversed in error.(b) The chancellor put the decision for reversal upon the ground, that in order to entitle the defendant to be considered a stockholder, the act required him to pay $10 in each share, which had not been done; and as there was no mutuality, it did not constitute a contract. That the contract, if any, was, "I agree to pay $25 for every share I acquire by this subscription ;" and if none were acquired, none were to be paid for. But at the same time he held, that if the subscription had been sufficient in the first instance, that the plaintiffs might resort to their action as a cumulative remedy, and that they had their election to exact the forfeiture prescribed by the statute. That this was an affirmative statute, it prescribed a form of contract, which, if so entered into as to bind the parties at the time of the consummation, without any aid from the statute by other express provisions, would entitle the plaintiffs to maintain their ac

(a) The Union Turnpike Co. v. Jenkins, 1 Caines' R. 384. (b) 1 Caines' C. 36.

tion, and that for the reason that it was a maxim in the common law; that a statute made in the affirmative, without any negative, express or implied, doth not take away the common law. The only other written opinion delivered in that case assumed the broad ground that this act was made for a particular purpose, ought to be strictly pursued, and as there was no remedy given except the forfeiture, that forfeiture was the only thing the corporation could insist upon. In a subsequent case, (a) which was an action upon a note given for five shares of the capital stock which was expressed upon its face, it was held that the action could be maintained, notwithstanding the remedy given in the act to exact a forfeiture of the share and all previous payments in case of non-payment. In the latter case the court admitted that the question intended to be raised in the case was whether the remedy given to the company by the statute, to exact the penalty of a forfeiture of the shares, and all previous payments, was not the only remedy. That the decision of the court of errors, reversing the decision in the case of The Union Turnpike Company v. Jenkins,(b) might give countenance to such an opinion; but that the court apprehended, that upon a careful examination of that case, the reversal was to be placed on other grounds, and that the reasoning and decision of the supreme court on the principal point remained good. It was to be presumed that the reversal went upon the ground assigned by the chancellor, who was then the principal law member of the court. It was therefore held that the action could be sustained; and the same doctrine was held in a subsequent case. (c) Thompson, J. in the case last cited, says: "Since the decision of the court in the case of

(a) The Goshen Turnpike Co. v. Hurton, 9 J. R. 217.

(b) 1 Caines' R. 384.

(c) The Duchess Manufacturing Co. v. Davis, 14 J. R. 244.

The Goshen Turnpike Co. v. Hurton, (a) the question whether an action could be sustained upon such a note ought to be considered at rest, at least in that court." He then took occasion to notice the decision of the court of errors,(b) and concluded that although one of the members of the court, in delivering his opinion, thought that the only remedy was a forfeiture of the shares and all previous payments, yet that was not the point upon which the case turned, but on the ground taken by the chancellor. The personal liability of the subscribers to an action on the subscription is adhered to in subsequent cases.(c) It has been held(d) that assumpsit could not be sustained against a putative father of a bastard for the child's support and maintenance, and that the only remedy in such cases was by procceding under the order of the sessions in the name of the overseers. This decision proceeded upon the ground that there was no liability of the putative father at common law, and in principle does not conflict with the other decision alluded to.

§ 689. Upon the question as to whether, where one simply subscribes the act of association, merely engages to become a proprietor of a certain number of shares, without any express promise to pay the amount, any other remedy than a sale under the act of the shares could be had, there is not a uniformity in the decisions. This question was very fully and elaborately discussed by Huntington, Justice, in one case. (e) In that case a corporation was created by the legislature, for the purpose of constructing a railroad, with the general powers

(a) 9 J. R. 217.

(b) 1 C. C. 86.

(c) Spear v. Crawford, 14 Wend. 20.

(d) Moncriff v. Ely, 19 Wendell R. 405.

(e) The Hartford and New Haven Rail Road Company v. Kennedy, 13 Conn. R. 499.

and privileges usually granted to corporations for similar purposes. The capital stock was to be $500,000, with the privilege of increasing it to $1000,000, to be divided. into shares of $100 each, transferable as the bye-laws should direct. Books were to be opened for subscriptions to the capital stock. The directors were authorized to require payment of the sums subscribed to the capital stock, and in case any stockholder should neglect to make payment accordingly, the directors were empowered to sell his shares at public auction, and to apply the avails to such payment, rendering the surplus, if any, to him. A. with others, signed a writing, which after referring to the act, was in these words: "We do hereby subscribe to the stock of said railroad the number of shares annexed to our names respectively, on the terms, conditions, and limitations mentioned in the charter," he paying at the same time five dollars on each share subscribed. On a reduction and apportionment of the subscription, ten shares were allowed to A. who received the company's certificate thereof, specifying the sum paid, and declaring the residue to be payable by instalments, as they should be ordered by the directors. Subsequent instalments were required by the directors, which A. refused to pay. In assumpsit brought by the company against A. for such instalments, it was held, 1st. That from the relation of stockholder and company thus created, a promise by the defendant was implied to pay the instalments in question; 2d. That the remedy provided by the clause authorizing a sale of the stock of delinquent stockholders, was cumulative merely, leaving such promise in full force. The first position maintained in this case, seems founded upon the well settled principles which have governed all the decisions allowing a recovery in such cases, and is not in fact in conflict with any of them. The defendant resisted payment on the ground that he had made no promise, express or im