Keogh vs. Daniell. on trade, or for other purposes, where, by the common law, the tenant would have the privilege of removal. Van Ness vs. Pacard, supra. The rule in such cases is, that the tenant may remove his fixtures at any time during the term, or even after its expiration, provided he yet remain in possession; but if he quit the possession without such removal, it is considered an abandonment of his right. Case last cited, and Penton vs. Robart, 2 East., 88. It is contended that the alleged non-payment of rent, and the assignment of the lease and under-letting of the premises by the tenant to the defendant, as a further security for the money loaned by him, without the consent of the plaintiff being first obtained in writing, was a forfeiture of the lease, by which the term expired before the action was commenced, and that, therefore, the right of removal was gone. The lease contains a covenant for the payment of rent at the times therein specified, and against assigning or underletting the premises, and provides that if the lessee make default in any of the covenants, he "shall forfeit all right and title to the lease and the premises therein demised, and every part thereof;" and that in that event, it shall be lawful for the plaintiff to re-enter and repossess himself of the same, and expel the lessee therefrom. The objection to the argument is, that the case only shows a cause of forfeiture, and for the expulsion of the tenant, but does not show that he, or those who claim. under him, * have been, in fact, expelled, or that [* 173] the plaintiff has re-entered, or repossessed himself of the premises. The tenant, and those claiming under him, were still in possession, claiming the right to hold under the lease, and until it was judicially determined that a forfeiture had taken place, and he and they were ousted, and the plaintiff repossessed by legal process, the term was not expired, and the right of removal remained. In Penton vs. Robart, the original term had expired, and the landlord had recovered judgment in ejectment against the tenant, but the tenant remained, in Downie vs. Hoover. fact, in possession, and being so, the court held that he was not liable, in an action by the landlord, for removing fixtures, erected for the purpose of trade, and that he might lawfully do so. It appears to us, therefore, that the equities of the complaint were fully answered, and that the plaintiff was not entitled to a continuance of the injunction, and that it should have been dissolved. The order of the circuit court is reversed, with costs. [NOTE. In relation to leases for years, as well as those for life, the happening of a cause of forfeiture, does not render the lease void, but voidable only, at the election of the lessor. Clark vs. Jones, 1 Denio, 516. Although by the condition of a lease it is provided that if any of the covenants on the part of the tenant are broken, the unexpired term shall cease, if the lease also contains a clause that, in case of the non-performance of such covenants, the landlord may re-enter, the lease is voidable only at the option of the landlord, upon a breach of such covenants, but is not void. Stuyvesant vs. Davis, 9 Paige, 427. Such a clause in a lease is a condition, and cannot be construed as a limitation. The Fifty Associates vs. Howland, 11 Met., 99. A breach in the condition of a deed, which is not a limitation, but gives a mere right of re-entry, does not avoid the estate. The estate is terminated in such a case by the re-entry of the lessor. Spear vs. Fuller, 8 N. H. 174; 11 Met., supra; Arnsby vs. Woodward, 6 Barn. & Cress., 519. To entitle the lessor to re-enter for non-payment of rent, the common law required a demand of the exact rent due, on the day it fell due, at a convenient time before sunset. Van Rensselaer vs. Jewett, 2 Coms., 141; Jackson vs. Harrison, 17 John. 66. A court of equity will not, generally, lend its active aid to enforce a forfeiture (Baxter vs. Lansing, 7 Paige, 350), but regards the clause of re-entry for the non-payment of rent as a mere security for its payment, and will interfere in the tenant's behalf, upon his satisfying the rent due, and any damages which the landlord may have sustained by his default. Taylor's Land. and Ten., 326; Story's Eq. Jur., § 1315. — REP.] [*174] * DOWNIE VS. HOOVER. A railroad company whose charter gives it the general power to make all contracts which its convenience or interest may require, his power, in carrying out the enterprise authorized by its charter, to assign its stock subscriptions, there being nothing in the charter imposing any restriction in that respect. (Followed, Downie vs. White, post, 176; Racine Co. Bank vs. Ayers, post, 512; Kimball vs. Spicer, post, 668.) APPEAL from the Circuit Court for Milwaukee County. The complaint in this case stated, that in May, 1856, the defendant, Hoover, made a subscription for five shares of Downie vs. Hoover. $100 each, of the capital stock of the Milwaukee and Beloit Railroad Company, to be paid at such times as the directors of said company should prescribe, &c., with a condition that the subscription should not be binding until the sum of $100,000 should be subscribed to the capital stock of said company, in the city of Milwaukee, independent of corporate aid; and after alleging the subscription of that amount to the stock of said company, in the city of Milwaukee, as required by said condition, and the making of various calls by the directors, for the payment of instalments upon stock subscription, under which the whole sum subscribed by the defendant had become due and payable, averred, that before the commencement of this action, the said railroad company, by an instrument in writing, duly executed, for a valuable consideration, and for purposes connected with the business of the company, assigned and transferred to the plaintiff, the said subscription of the defendant to the capital stock of said company, and all claim and demand of said company against the defendant, arising by means thereof. It alleged, also, demand of payment from the defendant, non-payment, &c, The defendant demurred to the complaint, upon the grounds, that it appeared upon the face of the complaint, that the plaintiff had no legal capacity to sue, and that the complaint did not state facts sufficient to constitute a cause of action. The circuit court sustained the demurrer, and from the order sustaining the same the plaintiff appealed. Adams & Pitkins, for appellant: A corporation can make all contracts which are necessary *and usual in the course of the business [*175] it transacts, as means to enable it to effect the objects of its institution, unless expressly prohibited by law or its charter. Barry vs. Merchants' Exchange Co., 1 Sandf. Ch., 280; Angell & Ames on Corp., 153, § 187; Pierce on Am. Railroad Law, 513, 515; 1 Kyd on Corp., 108; Hoyt vs. Thompson, 3 Sandf. Ch. R., 416; 1 Selden, VOL. XII. -13 Downie vs. Hoover. 320; 19 N. Y., 207; 32 N. H., 504, 507; 5 Ohio State, 59. They cited, also, as to the power of the company to make the assignment. Farmers' Loan & Trust Co. vs. Perry, 3 Sandf. Ch., 339; Curtis vs. Leavitt, 1 Smith (N. Y.), 62-66, 169, 219-222, 262; Madison, &c., Pl. R. Co. vs. Watertown Pl. R. Co., 5 Wis., 173; Rex vs. Mayor and Aldermen of London, 3 B. & A., 255, 271. Coon & Cotton, for respondent, argued that the assignment by the railroad company, of money due on a stock subscription, was unauthorized and void, as against public policy, and cited McCullough vs. Moss, 5 Denio, 518. By the Court, PAINE, J. The single question presented on this appeal is, whether a railroad company, in carrying out the enterprise authorized by its charter, has any power to assign its stock subscriptions. We think it has the power. A stock subscription is nothing but a contract, by which the subscriber is bound to pay the company certain amounts. It would clearly be assignable as between individuals, and we can see no reason why it should not, in the case of a corporation, acting in execution of the powers conferred by its charter. The fact that a company may abuse its power, and make contracts ruinous to itself, and to the value of its stock, does not seem to be a sufficient reason for denying the power. For they may undoubtedly do this whether this power of assignment exist or not. They may make extravagant contracts for materials, for land, and for labor in building the road, and thus make their stock worthless, as often happens. They become insolvent, receivers are appointed, who may compel the payment of unpaid stock subscriptions for the benefit of creditors, created by these extravagant and ruinous contracts. [*176] *The fact, therefore, that a company may ruin itself by indiscreet contracts, if such an assignment Downie vs. White. is allowed, is no reason against the power; for it may ruin itself by such contracts without such a power. At all events even though it might be a reason for the legislature to impose a restriction, it is no reason for the court where the charter contains no such restriction, but gives the general power to make all contracts which the convenience or interest of the company may require, to deny the power to make this particular contract. The reasoning in the case of Clark vs. Farrington, decided at this term (11 Wis. 306), is applicable to the question. The order of the court below sustaining the demurrer, is reversed with costs, and the cause remanded for further proceedings. DOWNIE VS. WHITE. Case of Downie vs. Hoover, ante, p. 192, followed. A secret agreement between the agent of a railroad company and a person subscribing for its stock, that the sum so subscribed should never be collected or that it might be discharged in something of less value than the amount expressed in the subscription, is a fraud upon the other stockholders, and payment of the amount subscribed will be enforced, without regard to such agreement. Parol evidence is not admissible to contradict or vary the terms of a written agreement. APPEAL from the Circuit Court for Milwaukee County. The complaint in this case was exactly similar to that in the preceding case of Downie vs. Hoover. The defendant filed an answer containing several grounds of defense. The first was a denial of the organization of the Milwaukee and Beloit R. R. Co.; the second, a denial that at the time of the pretended election of directors of said corporation, in March, 1856, there had been $50,000 of the capital stock thereof subscribed, as required by |