The agreement of the defendant, upon which the plaintiffs rely, created no liability on the part of the former, for the reason that, at the time it was made, there was no consideration to support it. It was nothing more than a proposition on the part of the defendant and others to take certain amounts of stock, provided the road should cross at Brownsville, and pass through by Conover’s. At the time this paper was executed by the defendant, there was no valuable consideration given by the company, and no agreement entered into by them, as a consideration for the agreement by the defendant. There was an entire want of mutuality—nothing was given by the com*319pany and nothing binding on their part. The fact that the company afterwards located and built the road agreeably to the conditions of the subscription, of itself, amounts to nothing, as it does not appear that at the time the defendant executed the agreement, the .company agreed, as the consideration therefor, thus to locate and build the road. In case of mutual promises, where the promise of one party is the consideration of that of the other, they must be concurrent and obligatory upon each at the same time, in order to render either binding. The case is not distinguishable in principle from those of The Utica and Schenectady Railroad Company v. Brinckerhoff, (21 Wend. 139 ;) Burnet v. Bisco, (4 John. 235;) and Cooke v. Oxley, (3 T. R. 653.)
I think, also, the agreement was void as a subscription for stock, on the ground that it was conditional, and as being contrary to public policy. This company was organized under the general plank road statute. (Laws of 1847, ch. 210.) The first section provides how persons shall become subscribers for stock. They are to subscribe the articles of association— “ each subscriber to such articles of association shall subscribe thereto his name and place of residence, and the number of shares taken by him in said company,” &c. So power -is conferred to make conditions. The franchises given by the act embrace the right in the corporations thereby authorized, to take private property without the consent of the owner. This the legislature has not the power to do, except on the supposition that it is for public use. The public, therefore, have an interest, and it is their right to insist that the spirit as well as the letter of the act be substantially complied with and observed; and any act or proceedings which tend to hinder or thwart the general policy or intention of the act, are necessarily void.
The policy and spirit of the act, among other things, is to have the road located in such manner as shall best subserve the interests of the traveling community generally. Subscriptions based upon such conditions as are annexed in this case would have an opposite tendency, and lead to a location of the road re*320gardless of the public interests. (Butternuts and Oxford Turnpike Co. v. North, 1 Hill, 518.)
[Monroe General Term, September 4, 1854.My opinion therefore is, that the motion to set aside the non-suit should be denied.
Ordered accordingly.
Johnson, T. R. Strong and Welles, Justices.]