This demurrer cannot be sustained. The copy was inadvertently made part of the record. The action is not brought upon the contract of subscription. Indeed, the very first ground taken in demurrer is, “ that the contract of subscription is not declared on.” It is plain that it was not meant to. be. The declaration is founded upon the provisions of the Rev. Sts. c. 39, § 53. This is not an action to recover the assessments made upon shares, but to recover the deficiency after a sale of shares under the provisions of the statute for failure to pay the assessments laid. The liability to the suit, if any exists, is one created by statute, not by contract. The plaintiffs aver, that the defendant by subscription became a stockholder, that he did not pay the assessments made upon his shares, that they were sold under the provisions of the statute, and that under those provisions he is liable for the deficiency.
It is a good defence to say, that his subscription was a conditional one, that the conditions were never performed by the company, and that therefore he never became a stockholder, and therefore is not liable for any deficiency existing after the sale of stock under the statute. But on demurrer, which admits the facts stated in the declaration, this question is not open. If the defendant intended to avail himself of this defence, he should have set it up in his answer. As the action itself is not brought upon the written contract of subscription,-the provisions of the ninth and tenth clauses of the second section of the statute of 1852, c. 312, do not apply to it.
*547The objection, that the declaration does not aver that the directors of the plaintiff corporation fixed the number of shares, was not taken in the demurrer, and was not open upon the argument.
The court have not passed upon the question, whether this demurrer could be taken after an answer to the'merits had been filed, nor upon the right of appeal from a decision of the court of common pleas upon a demurrer filed under the second clause of the statute of 1852, c. 312, § 21. These points were not taken, and have not been considered.
Demurrer overruled.