dant's name appeared in the act of parliament; but he doubted whether the register book could be given in evidence to show the further property in twenty-six shares; and a verdict was taken for the plaintiff for £10 only, with leave to move to enter for £270. The rule being accordingly obtained, and cause shown against it, the act of parliament was referred to. By one section of the act it was provided, that on the trial of any action against the owners of shares in the canal, it should only be necessary to prove that the defendant, at the time of making the call, was a proprietor of the share; and that the call was in fact made, and that due notice according to the act was given. The section went on to declare, that the production by the principal clerk, or other officer of the company of the register book, &c., should be sufficient evidence. It was then said by Lord Ellenborough to be clear, that the register book ought to have been admitted as evidence of the defendant's property in the shares. 1

SEC. II. The interest acquired by subscribing for shares in the stock of an existing incorporated company, is a good consideration to support an action against a subscriber. It might well be inferred, from the principles of law respecting promises and engagements in general, that where a person who becomes a stockholder of an incorporated company, by signing an agreement with other subscribers, by which they promise to pay the company a specific sum for every share set opposite their names, is liable in an action of assumpsit at the suit of the company. This point has moreover been expressly decided. In the case of the Duchess Manufacturing Company v. Davis, in the state of New York, the court (referring as authority to Union Turnpike Company v. Jenkins, 3 and Goshen Turnpike Company v. Hurtin, 4) decided that the defendant, having undertaken to enter into a contract with the plaintiffs in their corporate name, thus admitted them to be a body politic; and by his subscription for a certain number of shares, at a certain

3

Bristol and Taunton Navigation Canal Company v. Amos, 1 Maule and S. 569. ? 14 Johns. Rep. 238.

31 Caines, N. York, T. R. 86.

49 Johns Rep. 217.

sum, he became liable for the amount of his subscription, on the principle that the maker of a promissory note is liable. 1

The same point was also adjudged in Massachusetts, in the case of Chester Glass Company v. Dewey. 2 The objection taken in this case was, that the written paper signed by the defendant was made before the company was incorporated, and was therefore a contract only with the individuals. But the answer given, and which the Court thought sufficient, was, that the act incorporated all who might afterwards associate, as well as those who had then been associated. The defendant, the Court said, signed the paper after the act of incorporation had passed; but that he must be taken to have signed it on the day it bore date. Secondly: it was insisted that the defendant could not be a member without a certificate of his share; it having been provided by the general act upon the subject, that certificates of the shares should issue to the stockholders. But the issuing of the certificates, the Court considered, was not essential to the existence of the corporation, and that the corporation might be compelled by a court of Chancery, to give certificates. It was objected, thirdly, that the corporation had never been duly authorized under the statute, and that therefore no contract had been made with them, and that they had no right to maintain assumpsit to recover the amount of the subscription. The statute referred to, required that the first meeting should be called by a major part of the persons incorporated; and it appeared that one King and one Leister, who were partners in trade, were named in the act of incorporation, and that to the advertisement for calling the meeting, the name of the firm was signed. The court said, that considering this as one signature, there was not a majori

1 The case of Goshen Turnpike Company v. Hurtin, was an action of assumpsit on a promissory note made by the defendant, by which he promised to pay the plaintiffs 125 dollars, for 5 shares of the capital stock of said corporation, in such manner and proportion and at such time and place, as the said plaintiffs should from time to time require. There was a general demurrer to the declaration, and joinderi n demurrer. The court held that the note set forth in the declaration was a good promissory note, within the statute of New York, (which is in substance, the 3 and 4 Anne,) though it had not the words 'bearer' or order.' But the question which the parties had principally in view in the case, was, whether an action would lie at all on promise by a turnpike stockholder to pay his instalments, and it was held in the affirmative.

2 16 Mass. Rep. 94.

ty; though taking the names separately, there was. At any rate, they thought the objection could not be made by one of the company, after they had in fact been organized, and for several years transacted business, as a corporation; and that it would be right to consider the advertisement as signed by each of the partners,— the one who actually signed, acting as agent for the others.

In a case in Maryland, where notice was required to be given of the time and place for receiving subscriptions for stock, it was held that the want of notice was no defence to one who did subscribe; the object of the notice being only to prevent a monopoly of the stock.1 A person who subscribes before the existence of the corporation may afterwards raise a mutuality in his contract and give efficiency to his subscription by concurring in obtaining, and by accepting the act of incorporation; or by attending and voting at the corporate meetings. In an action for calls on shares possessed by the defendant, it appeared that the defendant had been one of the original subscribers, and had signed the following paper: 22 August, 1811. A list of subscribers to a fund for carrying into execution a plan for the improvement of the harbor of K. and making proper communications therewith, by a canal or rail roads;' that an act of parliament was obtained in June, 1812; that the defendant had attended some of the meetings of the committee, and had voted and taken an active part in them; but had on one occasion expressed a wish to withdraw his name from the subscription, and his name was not therefore inserted in the act; that he had, nevertheless, in November, attended a meeting of the subscribers, and seconded a motion for the appointment of clerk; and subsequently made an irregular assignment of his shares to another subscriber. On this evidence Wood, B., held that the defendant was not at liberty to withdraw his name without the consent of the other subscribers, and the plaintiff had a verdict. On a motion to set aside the verdict, the court held, as to the defendant's withdrawing from the speculation, that he could not discharge himself by any declar

1 Hagerstown Turn. Road Co. v. Creeger, 5 Har. and Johns. 122.

2 Phillips Limerick Academy v. Davis, 11 Mass. Rep. 116, and vid. Huddersfield Canal Company v. Buckley, 7 T. R. 36.

ation to that effect, and that the committee was incompetent to consent to such regulations, and observed, that it could not be said to have been the intention of the legislature to have discharged the defendant, for that would have required an express clause excluding him by name. The words of the act were, those who have subscribed or shall hereafter subscribe.' It was considered, that the defendant, being within the terms of the act, he would have been entitled to a share of the profits of the undertaking, as a proprietor; and that consequently he must be liable as such to the losses. Wherever there is an agreement, the court held, between several, one party cannot withdraw without the consent of the others, as in the case of creditors having agreed to take a composition, one cannot retract without the consent of all the rest. 1

And there are cases, where a subscriber will not be permitted to withdraw, when the corporation in view is for public and not for direct private benefit.

In the case of Farmington Academy v. Flint, in Massachusetts, the trustees of that institution, after being incorporated, and becoming seized in trust of the land which the legislature had granted on the faith of the private funds raised by subscription, proceeded to erect a building for the use of the institution. Flint being one of the trustees, never having dissented from any of their acts, and having, when called upon for payment, sent a man, who was a debtor of his, to work out a part of his subscription; it was thought that the recognition of his promise, accompanied by a knowledge on his part that the expense was going on, authorized a recovery against him to the amount of his subscription, on the ground of money paid, laid out, &c., to his use, and at his request. It was also thought to be like the case of a man working upon the house of another, who had knowledge of his proceedings; in which case,

2 Kidwelly Canal Co. v. Raby, 2 Price's Ex. Rep. 93. Where the members of an incorporated religious society subscribed a written agreement with the trustees of the society, by which they individually engaged to pay to the trustees the sums set opposite their respective names, for raising a salary for the minister; it was held that this was a valid contract in law and binding on the subscribers; and that it could not be dissolved but by mutual consent, nor cease to be obligatory until the minister ceased to render the service stipulated. Religious Society v. Stone, 7 Johns. Rep. 112. and vid. also Martyn v. Hynd, Doug. 142, Cowp. 437; and Taylor v. Gay. 1 Sid. 409. Vid. ante chap. viii sec. xi.

1

though he could prove no express promise, he would undoubtedly recover for his labor. The case of Farmington Academy v. Allen 2 differs from the case we have just cited, in the circumstance that the defendant who subscribed for the establishment of an academy, was not a trustee. He was, however, an inhabitant of the town, and knew of the erection of the building; and he moreover, actually advanced some part of the materials, excusing himself from paying the whole subscription only on the ground of his inability at the time. This was held sufficient to justify the trustees in proceeding to incur expense, on the faith of the defendant's subscription: and having so done, they have expended money for him, as the court said, on his implied request. The defendant was, therefore, held liable to the trustees for the remainder of his subscription, on the ground of money laid out by them for his use. But if the corporation had brought assumpsit on an express promise for the money subscribed, it could not, in that mode of suing, have been recovered. 3

SEC. III. It appears by the cases cited in the preceding section, that a corporation cannot sustain an action against an original subscriber, when at the time of the promise, the corporation had not an existence, without showing at least, some clear indication of concurrence in the party to be affected by it, with the corporate acts and proceedings. It was held to be a general principle, by Sewall, C. J., that voluntary agreements and promises, however reasonable the expectation from them of gifts or disbursements, even to public uses, when made without consideration, are not to be enforced as contracts: but when the promise is made in consequence of anything yielded to the advantage of the promisee, and so where it is a proposal upon a consideration afterwards performed or gained to the promiser, this may import a sufficient consideration.' 4 The decision in this case was, that, where persons who had sub

1 This case is not reported; we have given it as stated by Parker, C. J., in Farmington Academy v. Allen, 14 Mass. Rep. 175.

2 Ibid.

3 Ibid. and Phillips' Limerick Academy v. Davis, 11 Mass. Rep. 113. Union Turnpike Co. v. Jenkins, 1 Caine's, T. R. 381.

♦ Phillips' Limerick Academy v. Davis, 11 Mass. Rep. 117.