secretary of a banking corporation, it was held, is not a certifying officer; and copies certified by him, must be sworn to before they can be given in evidence.'

'Hallowell and Augusta Bank v. Hamlin, 14 Mass. R. 178; and see post, chap. on Writ of Mandamus.

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CHAPTER XV.

OF SUBSCRIPTIONS FOR, AND ASSESSMENTS UPON, SHARES IN JOINT STOCK CORPORATIONS.

§ 1. A SUBSCRIPTION for stock in a joint stock incorporated company is a contract, and the interest thereby acquired is a good consideration to support an action for the amount subscribed against the subscriber. With the view of facilitating the formation of joint stock companies, it is usual to have the capital subscribed for payable in instalments, or in other words, in small sums payable from time to time. Under an act of the legislature of Maryland incorporating a turnpike company, the shares subscribed for were to be paid for in several instalments at different times; and it was recognized as a contract, and it was held that the statute of limitations attached to each one as it became due. The case of Goshen Turnpike Co. v. Hurtin,' was an action of assumpsit on a promissory note made by the defendant, by which he promised to pay the plaintiffs a certain sum for five shares of the capital stock of the corporation, in such manner and proportion, and at such time and place as the plaintiffs should from time to time require. The question which the parties had principally in view in the case was, whether an action would lie on a promise by a turnpike stockholder to pay his instalments, and it was held in the affirmative. In the case of the Dutchess Manufacturing Company v. Davis, the court (referring as au

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1 See Wordsworth on Joint Stock Companies, 317; 39 Law Lib. 85. Baltimore, &c., Turn. Co. v. Barnes, 6 Harr. & Johns. (Md.) R. 57. And see Marine Bank of Baltimore v. Biays, 4 H. & Johns. (Md.) R. 338.

'Goshen Turn. Co. v. Hurtin, 9 Johns. (N. Y.) R. 217.

• Dutchess Manufacturing Company v. Davis, 14 Johns. (N. Y.) R. 238.

thority to the case last before mentioned, and to the case of Union Turnpike Company v. Jenkins,') 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 that, by his subscription for a certain number of shares, at a certain sum, he became liable for the amount of his subscription, on the principle that the maker of a promissory note is liable. The party sued was actually a subscriber. 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.'

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$2. A person subscribing before the organization of the corporation, raises a mutuality in his contract, and gives efficiency to his subscription, by his concurrence in obtaining, and by his acceptance of, the charter or act of incorporation, or by attending and voting at the corporate meetings. Where the act creating the corporation provides, that its members or they who may become such, shall organize before their corporate existence is complete; in an action to recover the price of stock subscribed for, previous to their organization, the defendant, by an appropriate plea, may throw upon the plaintiff the burden of showing a compliance with the requirements of the charter."

1 Union Turn. Co. v. Jenkins, 1 Caines (N. Y.) R. 86. And see Hibernia Turn. Co. v. Henderson, 8 S. & Rawle, 219; Ogle v. Somerset, &c., Co. 13 S. and Rawle (Penn.) R. 256; Commonwealth v. Gill, 3 Whart. (Penn.) R. 228.

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* Hagerstown Turn. Co. v. Creeger, 5 H. & Johns. (Md.) R. 122; and see Ward v. Griswoldville Man. Co. 16 Conn. R. 593; Bridgeport v. Housatonic R. R. Co. 15 Conn. R. 575.

* Phillips Limerick Academy v. Davis, 11 Mass. R. 116; Wallingford Man. Co. v. Fox, 12 Vt. R. 304; Selma & Tennessee Railroad Co. v Tipton, 5 Alabama R. 187.

Kidwelley Canal Co. v. Raby, 2 Price Ex. R. 93.

• Selma and Tennessee R. R. Co. v. Tipton, 5 Alabama R. 787.

The objection taken in one 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 majority; 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.

3. And a subscriber will not be permitted to withdraw,

1 Chester Glass Co. v. Dewey, 16 Mass. R. 94; and see Instone v. F. Bridge Co. 2 Bibb (Ky.) R. 570.

and abandon his shares, without the consent of the corporation, unless expressly empowered so to do by the act of incorporation.' In the case of Farmington Academy v. Flint, in Massachusetts, the trustees of that institution, after being incorporated, and becoming seised 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. The court also thought it to be like the case of a man working upon the house of another, who had knowledge of his proceedings; in which case, though he could prove no express promise, he would undoubtedly recover for his labor. The case of Farmington Academy v. Allen,' differs from the case we have just cited, only in the circumstance, that the defendant, who subscribed for the establishment of an academy, was not a trustee; but he was 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 sub

' Bordentown Turn. Co. v. Imlay, 1 Southard (N. J.) R. 285; United Society v. Eagle Bank, 7 Conn. R. 456.

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