cases, on the ground that the case before the court was that of a corporation organized for private profit merely. The court, however, overruled the distinction, and held that there was no personal liability of the defendant to the corporation, though, under the Massachusetts law, in case of a deficiency of corporation assets, the stockholders were personally liable to answer an execution against the company.

The above cases have been considered

by some, amongst others by the late Chief Justice REDFIELD (Redfield on Railways, 249), as resting upon the fact that in them the shares were given no par value, but were simply made liable to assessments, and a line of cases, of which The Cabot & West Springfield Bridge Co. v. Chapin, 6 Cush. 50, is an example, gives support to this idea, and viewed in this light these cases are perhaps reconcilable with the current of authority elsewhere, but the court itself does not seem to have rested on that ground alone or principally in making its decisions, as appears from the words of PARSONS, C. J., in the first-mentioned case, in which the learned judge seems to import the rule of strict construction of the criminal law into remedial civil legislation.

It is, however, admitted that a subscription affords sufficient consideration for a promise to pay, when expressly made, and that in that case the mere existence of a right of forfeiture will not deprive the company of the action of assumpsit: Worcester Turnpike Co. v. Williard, 5 Mass. 80; Taunton & South Boston Turnpike Co. v. Whiting,

10 Mass. 331.

In New Hampshire, the same doctrine has obtained, having been announced in The Franklin Glass Co. v. Alexander, 2 N. H. 380 (1821), in which WOODBURY, J., remarked: "It is well settled that when an act of incorporation gives no express remedy against a member

for assessments, he is liable to no action for them by virtue of his membership."

In Maine, in the case of The Kennebec & Portland Railroad Co. v. Kendall, 31 Me. 470 (1850), the subscription was simply for shares at $100 per share. The charter gave the power to ordain and establish such by-laws "as shall from time to time be deemed necessary and proper, &c.; also, to make and collect such assessments on the shares of the capital stock as may be deemed expedient, in such manner as shall be prescribed by their by-laws." A by-law was passed authorizing assessments and forfeiture for non-payment, and one holding the delinquent personally liable. SHEPLEY, C. J., said: "When the language of a charter or statute does not in terms authorize the corporation to make a call personally on a holder of stock, or impose upon him a personal obligation to pay, but authorizes a collection by sale of the shares, the construction in this and in most of the other states has been that no personal obligation to pay was imposed."

It will be observed that in this, unlike the Massachusetts cases, there was a value affixed to the shares of stock, and a consequent limitation of liability, so that this is an uncompromising statement and enforcement of the doctrine of the exclusive remedy by forfeiture.

These, it is believed, with a case to be hereafter noticed, are the principal cases in which it has been held that a special promise to pay for stock taken is necessary to render the subscriber, in the absence at least of a statutory enactment, liable in assumpsit. The case of The Hartford & New Haven Railroad Co. v. Kennedy, 12 Conn. 500 (1838), is a strong enunciation of the contrary doctrine. The charter of the company provided for a sale of stock in case of delinquency. The defendant subscribed and paid a portion of the price of the stock; the subscription-list contained

no express promise to pay.

On a failure to pay assessments, the company waived the forfeiture and sued in assumpsit for the arrears. On the argument the Massachusetts and New Hampshire cases were brought to the notice of the court. HUNTINGDON, J., said: "It is true, a promise to pay in precise terms does not appear to have been made. The defendant has not affixed his signature to an instrument which contains the words I promise to pay, but he has done an equivalent act. He has contracted with the plaintiffs to become a member of their corporation, and to be interested in their stock to the extent of $100 for each share assigned him, if that amount be required. *** When, therefore, the subscribers associated under the act and became stockholders to effect this object, and which could be accomplished only by the advance of money in payment of the instalments, it seems difficult to give any other legal meaning to their act than that it was equivalent to an express promise to pay their respective proportions of the capital when lawfully demanded. Such a construction of their engagement harmonizes with the entire design of their association, is in furtherance of its object, does no injustice to the stockholders, and affords all the security, which can reasonably be required by the public or the creditors of the corporation, that the object will be consummated and the debts of the company faithfully discharged." After noticing the Massachusetts cases, the learned judge spoke of the absence in them of an expressly given power to demand payment of assessments, and of the discretion given to the companies to fix the value of their stock, and continued: "We are not sure, however, that the highly respectable judicial tribunal which decided these cases was governed by any of the peculiar circumstances to which we have referred, nor will we confidently

assert that the cases are not strongly analogous to or are distinguishable from the present case. If the court are to be understood as establishing and applying to all statutes in no sense penal, the position that, where a new power is given by a statute which also prescribes the mode of its execution, those who claim the power can exercise it in no other way, we feel constrained to say, we cannot give to decisions founded on such a position the force of law in this state. *** When a common-law remedy is not taken away by the statute which prescribes a new one, the latter is merely cumulative. A statute made in the affirmative, without any negative expressed or implied, does not take away the common law: Co. Litt. 115."

This case was followed by Ward v. Griswoldville Manuf. Co., 16 Conn. 593 (1844), in which WAITE, J., said: "What obligation did a stockholder assume upon himself when he subscribed for a share of the stock of this company? The answer obviously is that he agreed to pay the sum of $100 in such instalments, and at such time, as shall be required by the directors."

In New York, the earliest case in which the question of the remedy where a forfeiture is permitted by statute arose, is Jenkins v. Union Turnpike Co., 1 Caines 381, and 1 Caines Cas. in error 86, (1804), wherein, though the case was ultimately decided against the company on another ground, LANSING, Ch. J., said, "This is an affirmative statute. It is a maxim of the common law that a statute made in the affirmative without any negative expressed or implied, doth not take away the common law. Therefore, the plaintiff may either have his remedy by the common law or upon the statute." L'HOMMEDIEU, Senator, who delivered the only other opinion, however, maintained the opposite, or as it may be called, the Massachusetts doctrine.

In Troy Turnpike and Railroad Co. v. McChesney, 21 Wend. 296 (1839), NELSON, Ch. J., said: "All the cases from 1 Caines 381 to 14 Johns. 238, show that the condition of forfeiture of stock and all previous sums paid, for the non-payment of any subsequent instalment, is but a cumulative remedy given to the company. *** It is true the

forfeiture clause is carried into the sub

scription papers. I cannot think that

this circumstance alters the case."

In The Fort Edward and Fort Miller Plank-road Co. v. Payne, 17 Barb. 569 (1854), the main question as to the effect of a stock subscription per se, was considered, HAND, P. J., saying: "I think the principle to be deduced from the decisions is that if the act of incorporation or any public statute declares the subscription to the stock or the proprietor of the shares shall pay calls made thereupon, or if he agrees to do so, whether in the articles of association or other legal instrument, he is personally liable, even although the corporation has power to forfeit his stock for non-payment. ***But where there is a right of forfeiture given, either by the act of corporation or by the terms of the subscription, but no absolute duty to pay is imposed by statute, and there is no promise to pay, neither the subscriber to the stock nor the shareholder is personally liable to the corporation for calls." He then raised an implied promise from a prior article of association. This case was reversed, 15 N. Y. 583, on another ground, but no opinion was given by the Court of Appeals on the position taken by the court below on the subject of the subscription; but in The Buffalo and New York Railway Co. v. Dudley 14 N. Y. 336 (1856), the question was fairly met by the Court of Appeals, T. A. JOHNSON, J., delivering the opinion, saying: "I am of opinion, therefore, that the agreement which the defendant subscribed is only

an agreement to take the stock of the corporation. But upon this undoubtedly the law raises an undertaking to pay the amount subscribed." It had been previously so held by a Supreme Court in Rensaeller and Washington Plank-road Co. v. Wetzel, 21 Barb. 56 (1855); see also Troy and Boston Railroad Co. v. Tibbets, 18 Barb. 297.

It is also held that while the remedies of forfeiture and by action are cumulative, yet a resort to the former will bar the latter, on the ground of a rescission of the original contract between the company and the subscriber: Buff. and N. Y. Railway Co. v. Dudley, supra; Small v. Herkimer Manufacturing Co., 2 Conn. 330, reversing 21 Wend. 273.

The first question does not seem to have arisen fairly in Pennsylvania. In the first case there on the subject of subscription-Delaware Canal Co. v. Sansom, 1 Binney 70 (1803)-there was a power of forfeiture given by statute and a subscription paper headed as follows: "We **** promise to pay the sum of $200 for every share of stock in the said company in such manner and proportions and at such times as shall be determined by the president and managers," &c. This was held a sufficient promise to bind the original subscriber; as to the remedy, it was held that the forfeiture might be waived and suit brought for instalments. YEATES, J., however, SMITH, J., concurring, intimated that an express promise was necessary to hold the subscriber, though an opinion on that point was not called for in the phase assumed by the case. In Merrimac Mining Co. v. Levy, 4 P. F. Smith 229 (1867), STRONG, J., delivering the opinion of the court, showed a decided tendency to follow the case in 12 Conn., and his language would justify the syllabus, which is as follows: "By the act of subscribing to the capital stock of an incorporated association each associate undertakes to raise his proportion of

the capital as it may be called for by the directors." In Franks Oil Co. v. McCleary, 13 P. F. Smith 319 (1869), however, THOMPSON, Ch. J., remarks on the foregoing case and reduces its effect to that of a mere registration of the law of Michigan, as expounded by the Supreme Court; the case having arisen under a Michigan charter, although the language of Judge STRONG would seem to take a broader range, and to be a species of precursor of his opinion in the principal case. We may, therefore, say that in Pennsylvania the question as to the personal liability of an original subscriber without a special promise, is unsettled, but that the law is, that forfeiture, where given, is a merely cumulative remedy and may be waived.

That forfeiture is a merely cumulative remedy is also held in Illinois : Klein v. Alton and Sangamon Railroad Co., 13 Ill. 514 (1851); Peoria and Oquawka Railroad Co. v. Elting, 17 Ill. 429 (1856); in Mississippi: Freeman v. Winchester, 10 Sm. & M. 577 (1848); in Michigan: Dexter and Muson Plankroad Co. v. Millerd, 3 Mich. 91 (1854). In Michigan indeed the cases go even further, and after a sale of the stock, which sale has not brought enough to cover the arrears, allow assumpsit to be brought for the deficiency. See Carson v. Arctic Mining Co., 5 Mich. 288, in which a distinction is taken between a sale and a forfeiture.

III. The liability of a transferree of stock for calls, made after he has become a proprietor of stock.

Of course, in those states where an express promise to pay has been held necessary to hold the original subscriber, in the absence of any duty imposed by statute, or declared thereby to arise out of the mere ownership of shares, à fortiori the transferree cannot be held in the absence of a promise to pay on his part: Franklin Glass Co. v. Alexandur, supra, is a fair statement of this view of the law. VOL. XXIV.-82

In Connecticut, in The Hartford and New Haven Railroad Co. v. Boorman, 12 Conn. 531 (1838), HUNTINGDON, J., said: "The reasons for our decision, subjecting the original subscribers to personal liability, apply with equal force to those who become stockholders by purchase. The relation of stockholder and company exists. A privity between them is established."

In New York, Mann v. Currie, 2 Barb. 294 (1848), it is said: "If he became a holder by a transfer to him of the stock of an original subscriber, he at once adopted his contract and became substituted in his place, both as regards his rights and liabilities."

In Maryland, Bend v. Susquehanna Bridge and Banking Co., 5 Har. & J. 128 (1823), the court said: "The charter authorizing transfers and declaring all who may become the actual proprietors of shares in the capital stock, either as subscribers for the same or as the legal representatives, successors or assignees of such subscribers,' to be a body politic and corporate, necessarily creates a privity and raises an assumpsit, on the part of such as choose to become stockholders by accepting transfers, to pay all such calls as may be regularly made, on which an action will properly lie."

This case follows very closely Lord KENYON's opinion in Huddersfield Canal Co. v. Buckley, 7 T. R. 36 (1796), wherein he said: "After the assignment the assignees hold the shares on the same conditions, and are subject to the same rules and orders as the original subscribers, and are to all intents and purposes substituted in the place of the original subscribers.”

In Pennsylvania, in The Canal Co. v. Sansom, supra, YEATES, J., said: “The shares the defendant holds as transferree stand on a different ground; as to them he has given no express promise to pay, and the act has made no other pro

vision than that the shares should be forfeited." The case was followed in Palmer v. Ridge Mining Co., 10 Casey 288 (1859), criticised in Merrimac Mining Co. v. Levy, supra, but recognised as binding authority in Franks Oil Co. v. McCleary, supra.

In The Merrimac Mining Co. v. Bagley, 14 Mich. 501 (1866), the court said: "There is no principle of law which can establish any difference among stockholders in the duties which are implied from that relation. The very essence of a corporation consists in its corporate succession, which, in stock companies, is kept up by the substitution of one owner for another in the proprietorship of shares."

The statement in Angel & Ames, sect. 534, quoted in the opinion, as to the shifting of the burden from the outgoing subscriber to the incoming stockholder, so far as it relates to the relief of the former, is a little too broadly put, and is unsupported by some at least of the authorities cited in the foot-note. The Aylesbury Railway Co. v. Mount, 5 Scott N. R. 127, and The West Philadelphia Canal Co. v. Innis, 3 Whart. 198, were not actions against original subscribers; while in Cowles v. Cromwell, 25 Barb. 413, the bank had assented to the transfer. Brigham v. Mead, 10 Allen 245, would seem to go the length of the text-book statement, but the report contains no very full statement of facts. On the other hand, there is authority to the effect that in order to protect itself, the corporation has a right to refuse to release an original subscriber by the acceptance of a new stockholder, until the stock is fully paid up. In Everhart v. The Philadelphia & West Chester Railroad Co., 4 Casey 339 (1857), the company refused to permit a transfer, and brought suit against the subscriber for arrears after the attempted assignment. In the Court of Common Pleas, HAINES, P. J., charged as follows: "A contract for the purchase of

shares of the capital stock of a jointstock company, like other contracts of sale and purchase, is binding until performed or released by the concurring assent of the parties, and consequently a buyer of such stock cannot discharge himself of his liability to pay for it by a transfer of it to a third party, without the consent of the company." He also held that the company could not arbitrarily withhold its assent, but only for cause. The verdict and judgment were for the company, which judgment was affirmed by the Supreme Court, though the judges differed on the grounds of affirmance. WOODWARD, J., said: "On the next question, which relates to the right of the defendant to transfer his stock so as to escape liability for the unpaid instalment, we are a divided bench; but a majority concur, though for different reasons, in holding him liable, notwithstanding the transfer he made. Two of us think that he had a perfect legal right to assign on any terms he pleased, but that unless it was done with the assent of the company, he remained liable for the unpaid portion of his subscription. One of our number is of opinion that if the assignment had been bonâ fide it would have released him from further liability, but that the record showing it was mala fide he remains liable." LEWIS, C. J., said: "Whether the transfer was fair or fraudulent, whether with the consent of the company or without it, whether entered on the books or not, whether the purchaser became liable for the instalments unpaid or not, there is nothing in the law or in the nature of the transaction, which discharges the original subscriber from his express written engagements to pay the money."

In a similar case, decided in the fall of the same year, Pittsburgh & Steubenville Railroad Co. v. Clarke et al., 5 Casey 146, in the court below, HAMPTON, P. J., had rested upon the law as stated in Angel & Ames, sect. 534, and left to