
    The Mansfield, Coldwater and Lake Michigan Railroad Company v. Luther A. Hall.
    1. A general demurrer to an answer which contains new matter and a specific denial of certain allegations of the petition should be overruled, if the allegations denied are material to the plaintiff’s right to recover.
    2. Under sections 6 and 7 of the act of May 1, 1852, to provide for the creation and regulation of incorporated companies in this state, S. & 0. 271, where a railroad company sues to recover unpaid installments of stock, an allegation in the petition, that its board of directors required subscriptions to its stock to be paid in installments of a certain amount, at. a certain time and place, is material to its right of recovery.
    Error to the District Court of Seneca county.
    The original action was brought by the present plaintiff in the Court of Common Pleas of the county above named, to recover of the defendant $1,000, and interest, on his subscription to the stock of the Mansfield, Coldwater and Lake Michigan Railway Company, which was afterward consolidated with the Ohio and Michigan Railway Company,, under the name and style of the plaintiff.
    
      The answer contained two separate defenses, to which plaintiff demurred generally. The demurrer was overruled by the court, and on the further hearing of the cause on the petition and answer, judgment was rendered for the defendant.
    The judgment was afterward affirmed by the District Court, and the plaintiff now seeks to reverse the judgment of affirmance.
    
      Gr. H. Seney, for plaintiff in error.
    
      Luther A. Hall and John McCauley, for defendant in error.
   Res, J.

The only question claiming our attention in this case is: Did the District Court err in affirming the judgment of the Court of Common Pleas ?

The petition alleges the existence of the plaintiff corporation ; the subscription to its stock by the defendant; the performance by the plaintiff of the condition in the contract of subscription on its part to be performed; the passage of a resolution by its board of directors requiring subscriptions to its stock to be paid to the treasurer of the-corporation at the city of Mansfield at the times and in the amounts named therein; the giving of notice to the defendant of the passage of the resolution and its contents; and the amount due on the subscription of the defendant to the stock of the company.

The answer, in its second ground of defense, denies the passage of the resolution set out in the petition, and also denies that notice wras given to the defendant by the company of its passage or requirements.

Under the provisions of sections 6 and 7 of the act of May 1, 1852, to provide for the creation and regulation of incorporated companies in this state (S. & C. Stat. 271), the allegation of the petition, that the board of directors of the company had, by resolution, required subscriptions to its stock to be paid in installments to its treasurer at the times and place and in the amounts named therein was material to the right of the plaintiff to recover unpaid installments of its stock.

The denial, therefore, of this allegation is a defense to the entire action of the plaintiff, and hence the general demurrer to the answer was properly overruled.

The cause having been submitted to the Court of Common Pleas on the petition and answer, the defendant was entitled to judgment.

We are therefore of opinion that the District Court did not err in affirming the judgment of the Court of Common Pleas.

Judgment affirmed.

Welch, C. J., White, Gilmore, and McIlvaine, JJ., concurred.  