
    Trumbull County Mutual Fire Insurance Company vs. James T. Horner.
    
      A member of a Mutual Fire Insurance Company when sued upon an assessment upon his deposite note, to pay a loss occasioned by fire, cannot set up as a deience that he and his associate corporators have neglected to comply with the provisions of their charter,
    This is a Writ of Error to the Court of Common Pleas of Trumbull County.
    The action below was Assumpsit. It was brought to recover an assessment upon the deposite note of the defendant, a member of said Company, executed by him to the Company upon the issuing of a policy to him by the Company — the assessment being needed to pay a loss sustained by fire.
    The defendant demurred to the plaintiffs declaration. The demurrer was sustained, and judgment rendered for the defendant:. That judgment is sought to be reversed by these proceedings.
    Two points were intended to be raised by the demurrer. 1. That there was no averment in the declaration that $100,000, had been subscribed before the Company issued the policy of the defendant, in accordance with the provisions of the charter. 2. That there was not a sufficient averment of demand before suit brought.
    The case was reserved for the purpose of publishing the opinion of the Court upon the first point.
    
      Van B. Humphrey, McLain Palm and Crowell &f Brown, for Plaintiff in Error,
    cited the following authorities:
    
      Henriques v. Hutch West India Co. 2 Lord Raym. Rep. 1535; Ang. & Ames on Corp. 506-7, 574-5, 746-9; 14 John’s Rep. 245 ; 6 Cowan’s Rep. 23; 8 Ohio Rep. 552; 10 Ohio Rep. Ill'; 15 Ohio Rep. 322; 5 Mass. Rep. 230; 5 John’s Rep> 378. 7 pick. Rep. 370; 12 Ohio Rep. 146; 3 Met. 137; 1 Wend. Rep. 557; 2 Blackf. Rep. 367; 16 Mass. Rep. 100; 9 Mass. Rep. 423 ; 9 Mass. Rep. 403 ; 16 Mass. Rep. 94; 14 John’s Rep 338; 13 Ohio Rep. 1.
    
      Hoffman &f Hutchins, M. £/ C. G. Sutliff, R. P. Ranney and Geo. M. Tuttle, for Defendant,
    cited the following authorities :
    ' tBank U. S. v, Dandridge, 12 Wheat. Rep. 64; Bank of Augusta v. Earl, 13 Pet. Rep. 587; Ohio v. Granville Alexandrian Society, 11 Ohio Rep. 12; 2 Kent’s Com. 298; 4 Pet. Rep. 152 ; 8 Ohio Rep. 286; 11 Ohio Rep, 97, 393; 10 Ohio Rep. 108; 4 Wheat. Rep. 636; 13 Conn. Rep 267; 8 Ohio Rep. 257 ; 2 Pet. Rep,. 527 ; 3 Wend. Rep. 482, 573 ; 2 Cow. Rep. 678; 7 Wend. Rep. 31; 2 Cranch’s Rep. 127.
   Read, J.

We recognize to; the fullest extent the cases cited to show that corporations are to be limited strictly to the powers conferred.

• The objection in this instance is urged by one of the corporators and one of the insured, and we doubt not had he sustained loss by fire, he would as strenuously have insisted upon his policy as he now opposes the payment of the amount assessed upon his deposite note, to pay loss, occasioned by fire to his neighbor.

It does not come with a very good grace from a corporator, after he has aided to put a corporation into action, and partook of its benefits, to deny its existence in order to escape its responsibilities. This would look very much like a man attempting to take advantage of his own wrong to avoid doing what was right, a defence not much favored in law. What the amount to be subscribed by the associates was to be composed of, whether premium notes, deposite notes, or the property to be insured, before policies could issue, is' not matter of easy solution. It is almost if not quite impossible, to determine it from the charter. But be this as it may, we consider a corporationDe when called upon to respond to the obligations of the corporation to be estopped from denying its existence in order to escape responsibility. At all events, when a corporation is sued, it is not necessary to aver in the declaration that the corporators have complied in all respects with the provisions necessary to give them power to act, whatever the ¡case might be in a suit against a mere stranger. Such matter in the case of a corporation, if good at all, must come by way of defence, and then it might be replied that he could not set up his own wrong. As to the averment of demand, this is sufficiently alleged to admit of proof.

The arguments in this case are of very great length and very great ability, as they usually are in cases of steamboats and corporations, and under some other heads of the law. Some fifty suits, it is said, are depending upon this case. But we believe we have said all that is material.

Judgment reversed and cause remanded.  