the assessment might be considered as made upon the stock merely, and the remedy in the nature of a proceeding in rem. Such would seem to be the import of the language used in some of the cases referred to.

§ 691. In one case,(a) the court, commenting on the cases cited by counsel from Esp. Dig. 7, to sustain the position that if a person becomes a member of any society or company, he thereby agrees to abide by all legal claims arising against him from the bye-laws or local regulations of that society to which he belongs, said: "In the cases cited from Espinasse, the penalties or assessments were set upon the persons, not upon the shares, as is the case under our statutes." Shaw, Ch. J. says: "The individual liability of stockholders, created by the statute of 1808, was of a particular and limited character, and could only be enforced in the manner pointed out in the statute. It did not subject a living stockholder to a general liability for assessments, but only authorized the company to sell the shares for payment of the assessments. By operation of law, the assessment is a lien upon the share. The share is in the same condition with any other pledged property."(b) The same judge, in another case, uses similar language: "The only compulsory mode which a manufacturing corporation has, to enforce the payment of assessments, is by sale of the share. By law, the assessment was a lien upon the share. The executor has an option to redeem the share for the benefit of the estate, by paying off the assessment, as he would have to redeem any other pledged property; and this option he will exercise according to his views of the interest of the estate." A similar distinction was taken upon the stock

between assessments upon the person and

(a) Franklin Glass Co. v. White. 14 Mass. R. 286.

(b) Ripley v. Sampson et al. 10 Pick. 371.

or property, in the case of The Trustees of the Congregation in Hebron v. Quackenbush.(a) In that case the pew on which the assessment was made had been sold to the defendant free from rent, and the pews were sold at a high price in consequence of this exemption. The statute vests the possession of the church in the trustee, and gives them power to "regulate and order the renting of the pews therein. About six months after the sale of the pews, the congregation passed a vote that if any assessment was made on the pews, and it remained unpaid for one month, the pews should be sold for the benefit of the congregation. No promise of the defendant to pay rent was shown; but he continued to be a member of the congregation, and occupied the pew he had purchased, and the action was brought to recover his proportion of the salary of the minister, assessed by the plaintiffs on all the pews. The court, in giving judgment for the defendant, say: "Whether the assessment of the pew rent was a valid assessment, we need not now inquire, for the defendant is not chargeable, in this case, upon the implied assumpsit to pay, in consequence of the occupation of the pew. The trustees have no power to make and levy personal assessments, and the owner of the pew is not liable in personam, unless there be some special ground from which to infer a contract and promise to pay. That the facts in this case were not sufficient to furnish such an inference."(b)

§ 692. Huntington, J. in the cases cited from 12 Conn. Rep. 499, says: "We are confirmed in the suggestions we have ventured to make touching the decision in Massachusetts, by adverting to the language of Sewall, Ch. J. in Phillips' Limerick Academy v. Davis, (c) referring

(a) 10 Johns. R. 217.

(b) See Cutler v. Middlesex Factory Co. 14 Pick. 483.

(c) 11 Mass. R. 113.

to the cases decided by the supreme court of that state, in which it was held that no implied obligation on the part of the corporators to pay their assessments arose from their being voluntarily members of the corporation. He says: It is said that these decisions were upon the ground of another remedy provided by the legislature in the act of incorporation. But that was not the sole ground, if it was in any respect a reason for those decisions.' And upon no other principle than that the payment of the assessments was intended to be enforced only by the sale of the stock, inasmuch as the power to assess was implied merely from the power to sell, can we consider the remarks of the court in The Andover and Medford Turnpike Corporation v. Gould (a) as having any just application. 'Persons not interested in having the turnpike, either from their situation or private property, may be requested to associate and become corporations. They may not be able to judge of the probable expenses or profits; but if they know that the assessments become grievous, they may abandon the enterprise by suf fering their shares to be sold-they may, on this principle, join the association.' This language, upon the supposition that no personal liability was intended to be imposed upon the proprietors, would be consistent with the good faith and moral honesty due to the creditors of the corporation." He held, that if the charter then in question was compared with the provisions of the Massachusetts act, as stated in the reported case, a wide difference would be perceived between them. In their charter, the amount of the capital was not made to depend upon the caprice or voluntary act of the corporation. It was fixed at "five hundred thousand dollars, with the privilege to increase to one million of dollars, to be divided

(a) 6 Mass. R. 40.

into shares of one hundred dollars each." The company was vested with all powers, privileges and immunities which were or might be necessary to carry into effect the purposes and objects of the act, and was empowered to purchase, receive and hold such real estate as might be necessary and convenient in accomplishing the object for which the incorporation was granted. A certain definite capital was created by the act, such as was deemed requisite to ensure the completion of the work and the faithful performance of the contracts of the corporation. Ample provision was made that this capital should not be merely nominal, but real. For this purpose, subscriptions were authorized to be received under such regulations as the persons named in the first section of the act might adopt. The directors were authorized to require payment for the stock at such time or times, and in such proportions and upon such conditions, as they should deem fit. They were also authorized to sell the stock of delinquent stockholders; and a forfeiture of the charter was incurred if one hundred thousand dollars was not expended upon the railroad within four years, or the road was not constructed, completed and put into operation within six years after the passage of the act. all these provisions great solicitude has been manifest to secure the public interest, the rights of creditors, the usefulness of the corporation, and the just expectations of stockholders. A capital sufficiently large was required to be created. The payment of so much as was necessary to insure the completion of the work within a reasonable time, and to discharge all its debts, was enforced by the authority given to require payment of the instalments, to sell the shares of negligent proprietors, and by the forfeiture of the charter, if the commencement or completion of the undertaking was unreasonably delayed. It was true the payment of the assessments

In

were dependent upon the action of the directors. They might limit the actual capital to a less sum than five hundred thousand dollars, if the whole amount was not wanted for the object; but no just fears were entertained that their duties to the public, the corporation and third persons would not be discharged. In that charter, the authority to demand payment for the stock was not merely implied from the power given to sell; it was given in express and explicit terms-"the directors may require the payment of the sums subscribed to the capital stock," &c. The power to sell was additional to the power to demand payment, and was not the only power expressly given. Hence no inference could be deduced that the exercise of the authority to sell was the only means intended to be provided to secure the payment of the capital stock. The subscriptions to the stock were not like those to the turnpike stock in Massachusetts,— an engagement to take a certain number of shares of uncertain value, in a company without any fixed capital,— but an engagement constituting the subscribers stockholders in a company with a specified capital, the shares of a certain determinate value, and creating an obligation on them to comply with all the terms, conditions and limitations mentioned in the charter, one of which gives authority to demand of them the payment of instalments as they should be ordered by the directors. The form of the certificates issued by the corporations in Massachusetts did not distinctly appear from the reported cases. In the case then under consideration, a certificate was issued and delivered to the defendant, in which it was expressed that the residue of the sums due for the stock was payable by instalments, as might be ordered by the board of directors. After a careful examination of the decisions to which the attention of the court had been called, they inclined to the opinion that the decision