Marlborough Branch Railroad v. Arnold

Merrick, J*

The instructions asked for by the plaintiffs should, under the circumstances stated in the bill of exceptions, have been given to the jury. By the provisions of the charter of the corporation, no assessment could be laid upon the shares of its capital stock until at least eight hundred shares had been subscribed for. But it appeared by the book of subscriptions, of which the corporation immediately after its organization became possessed, that that number of shares had been taken or agreed to be taken by different individuals. These subscriptions were all recognized and accepted by the company as valid agreements on the part of the several subscribers to take the number of shares written against their respective signatures. This book was retained by the corporation, and was always afterwards treated by it as the exhibition and proof of the number of shares of its capital stock, which had actually been taken and subscribed for. The company had a right so to consider it and to make it the basis of further action ; for subscriptions for shares, though made before the organization of the corporation, may become obligatory upon the parties, if made after the act of incorporation has been obtained. And in such case the subscription book is competent and proper evidence to be submitted to the jury, and, if not countervailed by any other proof, will be held to be conclusive of the liability of the subscrib*162ers. Lexington & West Cambridge Railroad v. Chandler, 13 Met. 311.

The corporation being it) possession of the subscription book, and the several subscriptions upon it purporting to be, and apparently being, genuine and authentic, it afforded a justification to its officers in proceeding to lay assessments upon the shares of the capital stock. The imposition of such an assessment is an act performed by the directors in the discharge of their official duty; and it is therefore, in the absence of opposing evidence, to be considered as justly and rightly done. 1 Phil. Ev. (4th Amer. ed.) 469 & notes. But this could be right only upon the assumption that the subscriptions for stock upon which they acted were real and genuine; and therefore this effect is to be allowed and given to them, until something is shown to create a doubt or bring the validity of the subscriptions into question. For these reasons the book which was produced by the plaintiff should, in connection with the circumstances proved in relation to it have been considered prima facie evidence of the amount and number of shares of stock subscribed for; and because the presiding judge declined to instruct the jury to that ■effect, the nonsuit must be set aside, and a

New trial granted.

This case was decided, and the remaining cases of this term were argued, at Boston in February 1858, before all the judges except Thomas, J.