misrepresentation, and avoid the burden it imposes. The legislature has no power over the person to make him a member of a corporation, and subject him to taxation nolens volens, for the promotion of a private enterprise." Marshall did not sign the petition, nor was there any evidence he ever consented to be a member; and in the only act in which he noticed the corporation, he protested against its power over him. From the general course of the evidence the presumption arising from his name being in the act was much weakened if not destroyed. The acts as to fences, common fields, and as to commissioners of sewers, are (said the court) public acts promotive of general convenience. "This is a private act, obtained at the solicitation of individuals for their emolument and advantage." Cн. 22. 315, Sullivan v. Mass. M. 23. In this action, grounded on the policy of insurance of 2 Mass. R. the company, it was held, that a member of it may at his own discretion surrender his policy, after alienating the build- & F. I. Coming insured; and at the time of the surrender may demand his pany. proportion of the funds, until which time the policy does not expire. The plt. insured March 1, 1799, on his house in Boston $6000, for seven years; paid $24 premium and $96 deposit money, and was liable to be assessed $240, all according to the rules of the corporation. This made him a member. May 14, 1800, the plt. sold his house and took a mortgage, and January 1, 1802, it was discharged, but Oct. 29, 1800, the plt. had assigned it. April 25, 1802, the plt. applied to the company to surrender his policy, and demanded of them to pay him $96, his deposit. They refused, saying, the policy expired above a year ago, and hence the $96 was forfeited. But judgment for the plt.; for his not surrendering was sufficient to continue his policy and membership. He not having surrendered his policy, he remained a member, though he sold his house, and his policy did not expire till he elected to surrender, April 2, 1802. The effect of the mortgage was not decided. v. Thomas. 24. In this case an execution issued against an aggregate 4 Mass. R. corporation, by the name of the president, directors, and com- 232, Nichols pany &c., directing the officer for want of estate to take their bodies. And the court decided, that a member could not be taken or arrested, and if arrested and he pay the execution, he may have trespass against the officer, for this execution was not against individual members. If it had been so by a clear description, possibly the officer might have been excused, or have justified under his execution issuing from a court having jurisdiction in the case. Worcester $25. This was assumpsit by the corporation against the 5 Mass. R. 80, deft. In this case after the company was incorporated, but Turnpike Corporation v. Willard. CH. 22. If A subscribe for shares in a turnpike corporation, he thereby acquires an interest and it is a good to support an action against him. 381. ber die before an act of in before it was organised by electing its officers &c. the deft. and others subscribed a paper severally, agreeing to take the shares affixed to each name, " and to pay all such legal assessments on each of said shares, as shall hereafter be made by the future government of the said corporation, after the same shall have been organised and carried into operation according to the act &c. on the condition contained in it, and (among others) so as to cross Charles river near the upper falls so called, at or near General Elliot's mills" &c. The corporation consideration was afterwards organised and went into operation, and the said conditions were complied with, and four assessments were made. The deft. paid one of them and refused to pay the 1 Caines' R. other three. In this action the corporation recovered on the express promise to pay, though the remedy provided for selling his shares for the payment of the assessments remained. If a subscri- The declaration was, "that in consideration the plts. at the deft's. request had admitted him to take one share in the capital stock of the said corporation, and to become a proprietor therein," he promised the plts. to take the share and to pay the assessments &c. No objection seems to have been made, that the plts. could admit or promise, or act at all on their part, till they were organised, and so that there could be no act on their part operating as the consideration of the promise. The court thought "that the deft. in consideration of becoming a proprietor of one share made a legal contract with the corporation," and expressly promised &c. But how did the deft. become a proprietor at the time of the promise when there was no organised corporation to admit him to become one? If he had been excluded his share by others taking the whole number, what remedy could he have had against the corporation on a bargain made with unauthorized individuals? It has been said, the corporation might elect to assume such a bargain, but if it would not be bound by it, as it was not, where was the mutuality, the consideration to make it valid? corporation is passed, his administrator is not liable &c., 5 Taun. R. 801. 5 Mass. Rep. v. Pope. 26. This was assumpsit by the plt., an agent of a turn491, Gilmore pike corporation for assessments. The deft. subscribed and engaged to pay the assessments on his two shares after the corporation was organised. The court held, that the corporation might maintain an action on the promise made to its agent, but that he could not; for as to him there was no consideration. A subscription made prior to, how renewed to a corporation, 14 Mass. R. 172, 176. 6 Mass. R. & Medford § 27. This was assumpsit to recover the amount of assess40, Andover ments on the deft's. turnpike shares, on the following subCorporation scription, to wit: "whereas the legislature has at the last session granted leave for making a turnpike road from &c., we the subscribers, desirous of having the same completed as v. Gould. CH. 22. Art. 1. soon as possible, agree to take in said road the number of shares set against our names, and be proprietors therein." Judgment for the deft. And the court held, that when the members of such a corporation expressly agree to pay the assessment that may be made by the corporation, an action lies for it to recover the assessments; but if there be no such agree- 14 Mass. R. ment, the sole remedy for the corporation is by a sale of the 286. shares of the delinquent members. The same principle holds in a manufacturing company, and an assessment laid after incorporated. 28. In assumpsit against Hay, a member, it was held, 7 Mass. R. that his declaration at a public meeting of the corporation, Same Corpothat he would spend half of his estate, speaking of the ex- ration v. Hay. penses of making the proposed turnpike road, was no evidence of an express promise to pay the assessments on his shares, and that no action lay against him for the assessments. There was no consideration for this declaration, nor was it any promise. 29. A corporation was created to lay and maintain side 7 Mass. R. booms in convenient places in river, it cannot enter on 393, Perry jr. v. Wilson. the land of one adjoining the river without his consent in order to lay the booms &c. v. Chadwick. 30. The promissory note in this case was from the deft. 8 Mass. R. to the plt., as agent of the Providence Hat Manufacturing 103, Buffum Company, and so the action was brought. But held, an action lay for the plt. in his own right, and his styling himself &c. was descriptio persona. Chandler & 31. This was an action of assumpsit on a note of hand, 9 Mass. R. dated Dec. 30, 1805, for value received, by which the deft. 335, Mann v. promised by the name and style of Gardner L. Chandler, al. treasurer of the Dorchester Turnpike Corporation, for himself and successors in office, to pay the plt. or bearer $125 on demand, and interest till paid. He was sued in his own right; and the note was given for the proper debt of the corporation. The court decided, that he was not personally liable, for the corporation itself is clearly liable, and authorized the deft. by vote to give this note. Not like the case Tibbets v. Walker & al., there the contract was under the seals of the defts., and they produced no authority to bind the corporation. See this case, Ch. 76, a. 2. The corporation is liable—the deft. Bank of Cois not. In this case the authority to the treasurer to bind the Patterson's corporation was by vote. See a corporation's assumpsit, ex- adm. press or implied, 7 Cranch 299, 307, well considered. lumbia v. 32. Assumpsit and quantum meruit against a number of 9 Mass. R. 300, Sproat r. persons who associated to get an act of incorporation for a Forter & al. bank, and at a regular meeting (not all present) the plt. was appointed their agent to obtain the act from the legislature. He did not obtain it; but held, the associates were all jointly CH 22. Art. 1. 7 Mass. R. 458, Stan wood v. Peirce. 8 Mass. R. 292, Essex Turnpike v. Collins. liable to his action for his services. That they knew expenses must be incurred of the sort, and that the jury might infer their assent jointly to pay them. Plea, never promised. The associates had subscribed their names in a book, and each to take so many shares. The plt. was a subscriber; one of the members at the meeting, acting as secretary, recorded the plt's. choice. § 33. The turnpike in this case was authorized to be from Bowdoin College to a certain place in Bath. The Sessions laid it out seventeen rods from the college buildings, and eight rods from the college lands, and the court decided it was well laid out. In an action of trespass the lands of the college were intended by the legislature, and as near to them as circumstances permitted. § 34. Assumpsit for assessments on the deft's. four shares in this corporation. Judgment for him. For though he subscribed Corporation to take four shares and pay the assessments thereon, (after a part of the turnpike was completed,) yet there was no previous or after act of the corporation ratifying his subscription. It did not appear that General Foster, who procured the subscriptions on the paper, had any authority so to do from the corporation, or that it gave any after assent to it, or that it even knew of it. On the whole it was clear, that the deft. could have had no action against it for withholding certificates of ownership, no act by which it was bound to admit him as a member, so there was no consideration to bind him &c. 10 Mass. R. 35. Assumpsit by the plts. as agents of the town of Marl430, Eager & borough for expenses incurred by the whole town in building a habitants of meeting house, and the plts. recovered. The objection was, that Marlborough. after the expenses incurred, and before the commencement of al. v. The In 10 Mass. R. this action, a number of the inhabitants were incorporated into a second parish in Marlborough. The meeting-house not being included in that parish, but remained the property of the first parish in Marlborough. The objection was founded on the fourth section of the statute 1786, Ch. 10; and the plt's. relied on the proviso in the same act. The meeting-house was for the benefit of all the inhabitants of the town when built. 36. Paying in shares. Assumpsit for money had and 476, Quiner v. received, second count for, also Dudley S. Broadstreet & Soc. Ins. Co. William Story were indebted to Benjamin T. Reed, and to Marblehead recover his demand &c. he caused to be attached 150 shares of the capital stock subscribed by them in the Marblehead Social Insurance Company and sold to satisfy his execution, and thereon the plt. purchased them for $- a share, and notice thereof being given to the defts. they became obliged to admit him &c. The statute incorporating this company provided, that no transfer of any share in it should be valid, until the whole capital stock should be paid in. D. S. Bradstreet for himself and partner, previously to the attachment, transferred these 150 shares bonâ fide to Isaac Story, and before all the stock was paid in. He was their creditor, and the transfer to him was in satisfaction of his debt. Held, they transferred to him the equitable interest so far as to justify the corporation in issuing the certificate of shares to him, and to consider him the true owner when all the stock was paid in. 2. Held, that such a transfer might be in writing not under seal. And hence, where one had subscribed for shares in the name of the firm, and had paid the instalments out of the funds of the partnership, he could transfer the shares without a power either general or special from his partner. When Reed attached, he was informed the shares had been so transferred to Isaac Story, and a copy of the bill of sale (under seal) to him after the attachment, but before the sale to the plt. on the execution, was left at the office of the company. William Story had been absent in Europe all this time, and was not consulted as to the subscription or transfer. These shares were partnership stock, so under the controul of each partner; nor was it necessary the transfer should be by deed under seal. But they passed by "the delivery over of the certificates with an endorsement on them by Bradstreet," as far as a chose in action could be transferred by law. The intent of the legislature in the prohibition was only to prevent speculations in the scrip &c., and not intended to prevent a debtor's bona fide transfer to his creditor. CH. 22. Art. 1. of Limerick 36. This was assumpsit to recover $100 the deft. sub- 11 Mass. R. scribed towards erecting this academy. And sundry other 113, Trustees persons also subscribed in like manner, and afterwards the Academy v legislature incorporated them and constituted certain trustees, Davis. the plts. a body politic, and the act provided, that all monies &c. subscribed should be demanded, received, and held by the said trustees, in trust for the academy. Held, the corporation could not maintain assumpsit upon said agreement against a subscriber for the money by him subscribed; for the plts. were not the promisees, not existing when the promise was made, nor is it negotiable, nor is it transferred by the act. On the whole the subscription paper is no contract, no mutuality in it, no parties, no consideration. This paper was thus; July 1, 1808, impressed with a sense of the advantages arising from free schools; we the subscribers agree to pay or cause to be paid the several sums affixed to our names in money or materials for erecting an academy in Limerick, on such land as may be given by any subscriber, and adjudged the most convenient and central by a majority of the subscribers." This |