The two first grounds, upon which the defendants moved for a nonsuit, covered the same points as are embraced in the two exceptions to the evidence offered on the part of the plaintiffs and admitted, and will be considered together.
First. The plaintiffs offered in evidence, to sustain the issue that it was a corporation, the articles of association and the affidavits annexed, and the same were objected to on the ground that the affidavit did not state that five per cent in cash had been paid in to the directors of the company. The plaintiffs allege in their complaint that they had constructed a plank road for a distance of six miles or thereabout, and had for six years then last past had a toll-gate erected thereon, at which they had collected toll, as by the act they were authorized to do. This allegation is not denied in the answer, and the defendants distinctly aver in their answer that the plaintiffs had constructed their said road. Evidence was offered, tending to show the organization of the company, and user, under the charter. *Page 652
The act of March 28, 1854 (Laws of 1854, ch. 87), was passed doubtless to cover any defects which might exist in the organization of the numerous plank road companies then existing throughout the State. Section 6 of that act declares that every company formed or organized under the plank road act of 1847, and the several acts amendatory thereof, shall be deemed to be a valid corporation, although such company may not have complied with the requirements of such acts in the formation and organization of such company; and it is declared that no act or omission on the part of the company, its stockholders or officers, shall work a forfeiture of its corporate powers or franchises, unless the same was malicious and willful. The first section of the act of April 18, 1855 (Laws of 1855, ch. 546), declares that in any action brought by any plank road company, organized under the laws of this State, which shall have been in actual operation, and being in possession of a road upon which they have taken toll for five consecutive years next preceding the commencement of the action, parol proof of such corporate existence and use shall be sufficient for all purposes of the action, unless the opposing party shall set up a claim in his answer, duly verified, of title in himself, to the road or to some part thereof.
No such claim of title was set up in the answer in this action, and it being admitted by the answer that the plaintiffs had constructed and owned a plank road, and then had, and for six years last past, had a toll-gate erected thereon, at which they have collected tolls, such facts bring these plaintiffs within the operation of the first section of the last above referred to act, and parol proof of their corporate existence was all that was required of them. The use was admitted, and the exceptions taken to the admission of the testimony were untenable, and the nonsuit on the two grounds first stated was properly denied. The third ground of nonsuit was that Chamberlain and the defendants Willetts were each to pay his and their own toll to the plaintiffs, and that the plaintiffs had failed to show any copartnership or joint liability, by or between the defendants in this action. There *Page 653 was some evidence on these points which the referee, sitting as a jury, was to weigh and consider, and he properly, therefore, declined to nonsuit the plaintiffs on this third ground. And on the important question in the case, namely, the joint liability of the defendants for the total amount of tolls on all the timber passing over their road, the referee found, as matter of fact, that during the winter of 1857 and 1858, the defendants moved a quantity of timber from certain points mentioned; that the defendants respectively employed men and teams to move said timber, and personally took the direction and control of the work, and that the defendants Willetts were first the owners of the timber, and before moving the same, proposed to the defendant Chamberlain that he should become the owner of a third part thereof, and that during the progress of the work of moving said timber he accepted said proposition and became such owner. And that all the teams engaged in moving said timber passed over the plaintiffs' road and through their said gate. This finding, in connection with the other facts, establishes beyond all doubt, the joint ownership of all the defendants of the timber moved over the plaintiffs' road and through their gate; and such ownership, I think it is fairly inferable, referred back to a period anterior to the moving of any of said timber. It is found that the defendants Willetts, before any of the timber was moved, proposed to Chamberlain to become a joint owner with them of the timber, and that after they had commenced moving the same, he accepted their proposition. This acceptance, I think, has relation back to the time when the proposition was made, and that the reasonable inference is, that Chamberlain came in as joint owner, as of that time, namely, before any of the timber was moved. We have no facts before us to indicate what proportion of the timber was moved before Chamberlain decided to accept the proposition of the Willetts, but we have the fact distinctly found that the defendants moved the timber, and that they respectively employed teams and men to move the same. The tally kept by the toll-keeper, at the defendants' request, determined nothing as to the liabilities of the defendants, *Page 654 and in no sense qualified or limited the claim of the plaintiffs for the tolls. It was obviously kept for the convenience of the defendants, and for the purpose of adjusting accounts between themselves. It demonstrates that the defendant Chamberlain must have drawn far beyond the proportion he, as owner of one-third of the timber, was under obligation to draw, for the amount of tolls charged against his teams was fifty-two dollars, while that charged against the teams of the defendants Willetts amounted to sixty dollars and fifty-six cents. It furnishes, therefore, no indication that the quantity drawn by the teams of Chamberlain was confined to his one-third, but the contrary. The conclusions of the referee upon these facts are clearly correct, and the judgment should be affirmed, with costs.