Hager's Town Turnpike Road Co. v. Creeger , 5 H. & J. 122 ( 1820 )

Earle, J.

delivered the. opinion of the court. This if an action of assumpsit for money had and received, founded on the act of 1813, eh. 138. It is brought by the turnpike company against a delinquent stockholder, to enforce the payment of money subscribed by him. for shares of stock in the books opened by the commissioners at Mechanic’s-tovm. Besides the several acts of assembly on this subject, the plaintiffs read, in evidence, to support their case, the original subscription book opened at Mechaxdc’stown, and proved the hand-writing therein of the defendant, who subscribed for twenty-five shares. The book thus produced did not exactly conform to the formula prescribed by the act of assembly. The form according to the act is—“we whose names are hereunto subscribed, do promise to pay to The President, Managers and Company, of the Hager’s-Town turnpike road company, the sum of —— dollars for every share of stock in the said company, set opposite to our respective names,” and the fonn in-by the commissioners in the books was, “we whose names are hereunto subscribed, do promise to pay to The Managers and Company of the Hager’s-Tbion turnpike roacl company,” &c. omitting the word “President.” On this omission, and the plaintiffs’ neglect to produce testimony of the notice published by the commissioners previ" ous to opening the books, the defendant rested his defence, in the action, and the court below sustained both of the objections, being of opinion that the omission and neglect were fatal to the plaintiffs’ suit.

A distinction is. to be found in all the authorities between actions by corporations, and contracts, leases, bonds and grants, made by or to them. In regard to the first, great strictness, is observed, whereas, much indulgence is shown to support the latter; and the reason assigned is, that in actions, the consequences of a misnomer are easily repaired, while a mistake ip the name., in grants, &c. would be fatal, and the benefit of them would be wholly lost. With this distinction in view, the court think that this rule may be laid down as to mistakes made, in the. name of corporations, that if there is enough said in their contracts, leases, bonds and grants, to show that there is such a body politic, and to distinguish it from others, the corporation is well named. In the case before us, the word “President” is alone omitted in the formula, and the court is of opinion, enough is in the other expressions to describe the corporation intended, and to effectuate the contract. And we are the more inclined to this opinion, in this case, because the contract here was not made by the turnpike company itself, or by its agents, but was made by anticipation before the company had a legal existence, and by commissioners wholly independent of, and uncontrolled by them. On this point then, we must differ in opinion with the court below. And on the other point in the first bill of exceptions, we can by no means agree with them. It was not necessary, to maintain the suit, to prove that the commissioners at Mechanic1s-town proceeded regularly as to notice previous to their opening the books. This precaution is directed by law to prevent a monopoly of the stock by a few, and it does not lay with one of the monopolizers, (if this were the fact,) to take advantage of a neglect that operated in his favour. Whoever may be prejudiced by such an oversight in the commissioners, it is not the man who is present at’’the opening of the books, and takes a portion of the stock by signing his name.

After so much has been said with regard to the proof of notice, little is necessary to be added on the opinion of the court given in the second bill of exceptions. The court here refused to instruct the jury, that they might presume that the notice was given according to the directions of the law; and in this we think they clearly committed an error. Where a corporation has gone into operation, and rights have been acquired under it, every presumption should be made in favour of the legality of its existence.

' This court, therefore, dissent from the opinions expressed by the court below in both of the bills of exceptions.