
    
      The Greenville & Columbia Railroad Company vs. R. Cathcart.
    
    The Act incorporating the Greenville and Columbia Railroad Company provides, in one section, that the company “ may sue and be sued by its corporate name and, in another section, “ that every subscriber, or holder of stock in said company, shall pay to the company the amount of the shares by him or her subscribed or held, in such instalments as shall be called.for; and on failure of any subscriber or stockholder to pay up any instalments called for, the shares upon which default snail be made, together with any past payment thereon, shall be forfeited to the company, and be appropriated as they shall see fit.” Held, that the remedy by forfeiture is cumulative, and that its insertion in'the charter does not take away from . the company the right to sue a delinquent subscriber for instalments called for.
    
      Before Frost, X, at Richland, Fall Term, 1849.
    The plaintiffs brought suit by sum. pro. to recover certain instalments, of one dollar each, on the subscription of the defendant to the stock of the company. The number of shares required by the charter for that purpose having been subscribed, the company was organized and officers elected at a meeting of the stockholders in March, 1847. The books were ordered to be opened to receive such additional subscriptions as might be obtained. The subscription book at Columbia was produced, entitled “Book opened at Columbia, for subscription to the stock of the Columbia and Greenville Railroad Company.” In this book were several columns for the names of subscribers, the number of shares subscribed, date of subscription, amounts paid, &e. Under date of the 10th May, 1847, was entered the name of the defendant, for five shares; and, in the column of amounts paid, five dollars was entered, for which a receipt was given by the commissioners to the defendant, as the first instalment on five shares in the stock of the company. The instalments claimed were proved to have been regularly called for, and that seven were payable by the defendant.
    By the seventh section of the Act incorporating the company, it is provided that the company “ may sue and be sued by its corporate name,” (11 Stat. 326,) and by the 19th sec., (Ib. 330,) “ that every subscriber, or holder of stock in said company, shall pay to the company the amount of the shares by him or her subscribed or held, in such instalments, not exceeding five dollars on each share at one time, and at such periods, with inter-va’s of not less than sixty days, as shall be prescribed and called for by the directors; and, on failure of any subscriber or stockholder to pay up any instalments so called for by the directors, the shares upon which default shall be made, together with any past payment thereon, shall be forfeited to the company, and be appropriated as they shall see fit.”
    The defendant objected to the plaintiffs’s right of action, on the ground that the remedy by suit for instalments due not being expressly given by the Act, the plaintiffs could not sustain their action against the defendant, but must pursue the remedy by forfeiture, expressly given to them. His Honor, the presiding Judge, overruled the objection, and decreed for the plaintiffs, from which decree the defendant appealed, on the following grounds:t
    1. Because the charter of the company provides that, for a failure by subscribers to pay instalments as called for, the instal-ments paid in, as well as the shares, shall be forfeited to the company, to be disposed of as the company may see fit, but does not provide a remedy by suit; and the defendant not having expressly promised to pay instalments, the company is confined to the remedy provided by the charter, and cannot recover in this action.
    2. That, if the company has been injured by reason of the failure of the defendant to comply with his promise to become and remain a member of the company, the remedy was by an action on the case for such damages as have actually been sustained.
    3. That the subscription of the defendant was not an express promise to pay instalments, but was an undertaking to make an investment to the amount of his subscription in the stock of the company, and was not such an undertaking as will enable the plaintiffs to recover in this action.
    
      Arthur, for the motion.
    
      Maxcy Gregg, contra.
   Curia, per

Evans, J.

The question which has been argued in this Court is, whether the plaintiffs, under their charter, can maintain this action, and to this alone has the attention of the Court been directed. There is no difference of opinion on the proposition that a corporation, being a mere legal entity — a factitious creation of the law — we must look to its charter for the evidence of its existence and extent of its rights. The general rule is, that it has no powers, except those granted. The charter of this company, like other charters, gives expressly the power to sue and be sued; and, as the corporation is a distinct being from its members, I see no reason why it may not sue one of its members as well as other persons. But, if there were any doubt on this subject, it is removed by the Act of 1792.

The 19th section of the charter imposes on every subscriber or stockholder the obligation to pay to the company the amount of the shares subscribed for; “and, on failure to pay up any instalment called for, the shares on which such default may be made, together with any payment .thereon, shall be forfeited to the company, to be appropriated as they shall see fit.” The question, therefore, is, whether, as the charter has given one mode of coercing payment, all others are excluded. On one side it is contended that forfeiture is the only remedy, and, on the other, that this is merely cumulative, at the option of the company.

There is abundance of authority that the fact of subscribing creates the obligation and implied promise to pay, and is a sufficient consideration to support the promise: (2 Bibb. 576; 3Alab. B.ep. 660; 5 Alab. 787.) If, therefore, the clause of forfeiture had been omitted, I suppose there would be no doubt about the right of the company to recover. Does the insertion of another mode exclude the right which would otherwise have existed ? From the numerous authorities which have been quoted, it is very likely there have been contradictory decisions on the subject. In the case of the Andover Corporation vs. Gould, (6 Mass. R. 40,) Parsons, C. J., is reported to have said that it was a general rule, founded on sound reason, that where a statute gives a new power, and, at the same time, provides the means of executing it, those who claim the power can execute it in no other way. All the subsequent cases, (7 Mass. 102, 8 Mass. 138, 10 do. 384,14 do. 287. and 10 Pick. 378) — all carry out the same principles. So far as I can ascertain from the reports, there is a general Act defining the mode in which particular corporations may be formed. The shares have no particular value, but each subscriber agrees to take a certain proportion of the stock, and the penalty prescribed for default in paying assessments is by sale of the shares. In New Bedford and Bridgwater Turnpike Corporation vs. J. Q. Adams, it is said, if one expressly promise to pay, he is bound; but, by subscription, he simply engages to become a proprietor of a certain number of shares, without promising to pay assessments The idea which runs through the cases seems to be this — that, by the contract, his express promise is only to become the proprietor .of so many shares; and the implied promise to pay assessments cannot arise where the charter has pointed out a particular mode of enforcing payment. But all the cases agree that, if there be an express promise to pay, an action of assumpsit will lie. I cannot but believe that this opinion is founded in something in their organic law, for most of the cases refer to an Act of the Legislature, which regulates the mode in which such companies are to be formed. But, be this as it may, the decisions in all or most of the other States, proceed on different principles, and hold a contrary doctrine. I proceed to state some of them. Inston vs. The Frankfort Bridge Co. (2 Bibb. 516.) In this case, the defendant had subscribed for twenty shares, at one hundred dollars each. The following principles were decided: 1. In an action by the corporation against a subscriber for the amount subscribed, no other consideration is necessary to be shewn than the subscription, according to the terms of the charter. 2. Whenever there is a legal liability, the law implies a promise to pay. 3. The remedy given by the statute, to sell the share of a delinquent, is cumulative. 4. The right to sue for debts due the company existed in the corporation, and was not taken away by an affirmative grant of another remedy. 5. The attempt to sell the shares did not take away the right to sue for instalments called for.

Tar River Navigation Co. vs. Neal, (3 Hawks, 520,) where an Act of -the Legislature, incorporating a company, authorizes the company to strike off the name of a delinquent subscriber and to sell his shares, this mode is merely cumulative, and does not preclude the company from suing for instalments due.

Beene vs. The Callaba & Marion Railroad Company, (3 Alaba. R. 660.) Books were opened,.similar to those opened in this case. The defendant, Beene, subscribed for twenty shares, value $2,000. Upon default of payment, he was sued. It was decided that the act of subscribing created a contract to pay for the shares subscribed, in the manner prescribed by the charter; and the corporation may sue notwithstanding another remedy may be given by the charter. authorizing the sale of the stock when it could be sold at par. Other cases were quoted in the argument, to prove the remedy by sale was merely cumulative. (See 4 Rand. 576 ; 21 Wendell, 296.)

Our own case of Palmetto Lodge vs. Hubbell, (2 Strob. 458,) is to the same effect.

No English case on the point has been brought to our notice, except the case of Kirk vs. Nowill, (1 Term R. 118,) which decides that where an Act of Parliament directs one mode of proceeding to recover penalties and forfeitures, no other can be used. The same principle was recognized in this Court, many years ago, in the case of McRae vs. The Town Council of Camden. There can be no doubt of the correctness of this principle, but it has no bearing on the question under consideration. A penalty is no debt, nor can there be any promise to pay it implied, if inflicted in any other way than the one pointed out by the charter. The nineteenth section of the charter of the Greenville and Columbia Rail Road Company provides, “ that every subscriber or holder of stock shall pay to the Company the amount of the shares by him or her subscribed or held.” “ And on failure to pay up any instalments so called for,” “ the shares upon which default shall be made, together with any past payments thereon, shall be forfeited to the Company and appropriated as they shall see fit.” The first part of this clause imposes on the subscribers the obligation to pay; and all the cases quoted above from Kentucky, North Carolina, Alabama and New York, agree that the power of sale or the penalty of forfeiture does not take away the remedy by action to recover the value of the shares subscribed. The word used in this charter is, shall, and that is supposed to impose an imperative order of forfeiture. Shall, is a word of various signification, as any one will discover by looking into Richardson’s or Webster’s Dictionaries. In several parts of this charter it is used as of the same import as may, and in other place's, shall and may are used together as convertible terms ; as in the 19th section, where it is said, the said Company “ shall and may prescribe.” It does not seem to me the words can have a more imperative meaning, than that payment shall he made under penalty of forfeiture. The charter of the Troy Turnpike and Kail Road Company contained the provision that payment for the stock should be made upon pain of forfeiture of the stock and all previous payments, and yet it was held, in 21 Wend. 296, that these words did not prevent the Company from recovering the sums due for stock. In the case of the Selma and Tennessee Rail Road Company vs. Tiplon, the words of the charter were, “ that for failure to pay any requisition, the stock shall be forfeited to the Company with all the instalments that may have been paid.” These words are of the same import, and almost identical with the words of the charter of the plaintiffs, and it was decided that the company could recover the price of the stock. Whether we consider the words of the charter in their import, as gathered from the charter, or their ordinary import, or the judicial construction placed on similar words, I think there is nothing in them which made it imperative on the Company to forfeit the stock of the defendants; but even if that be so, the time is discretionary, and until it is exercised, the stock remains the property of the subscribeis, and so long as they retain the stock, they are bound by the charter and their subscription to pay according to the terms of it. The object in chartering the Company was to raise money to build the road, and this would be most effectually defeated, if the stockholders could evade their promises to pay the amount of their subscription, by a mere forfeiture of the stock. I, therefore, think that the power to forfeit is merely cumulative, and the insertion of it in the charter does not take away the other legal remedies which the Company have to enforce payment from the stockholders.

The motion is dismissed.

Frost, Withers and Whitner, JJ. concurred.

Wardlaw, J.

dissenting. The paper signed by the defendant, unintelligible of itself, by reference to the charter shews the agreement of the defendant to take, in stock of an existing company, five shares of $20 each, and to pay the amount of his shares in instalments as they should be regularly called for, under pain of forfeiting his shares, with the past payments made thereon, for any neglect of such payment. It was not an agreement to pay money unconditionally, but an agreement to take stock upon the conditions expressed by the charter; and one condition was, that the consequence of non-payment should be forfeiture. This gave to the Company the right of declaring forfeiture when it was incurred; and it gave to the subscriber the right of stopping his payments whenever he was willing to endure the prescribed penalty. It was intended for the mutual benefit of the Company and of the subscriber — calculated on one hand to facilitate the procuring of subscriptions sufficient for the formation of the Company, and on the other, to save a stockholder from the necessity of persevering in the contemplated enterprise, if he thought the loss would be greater than the sacrifice of his past payments. The option which, upon every call for an instalment, the stockholder could exercise, either to pay or to incur forfeiture, was the same, whether the Company availed itself of the right which non-payment gave to it, or forbore to do so. To creditors and other stockholders of the Company, the withdrawal upon the condition expressed, of every stockholder unwilling to pay, could not be considered unjust; for all must be presumed to have acted with the knowledge of his right to do so, and to have looked to the forfeiture as sufficient either to coerce payment or to indemnify for its neglect. If a great depreciation of the stock should have rendered this expectation fallacious, then they are in the condition of others who have trusted to an insufficient security or ventured upon an unprofitable speculation. The charter provides that a cash payment of five dollars per share shall be necessary to perfect a subscription, and, as Lord Keyon said, (7 Term, 36, speaking of arguments from inconvenience urged to shew that even after assignment of his shares, a subscriber should be held liable to suit,) The Legislature, rvhen they gave their sanction to this undertaking, did not suppose that it was a mere South Sea scheme: they thought it a beneficial undertaking for the public, and conceived they had provided a sufficient check, by enacting that if the subscribers would not pay their money from time to time, as they should be required by the committee, they should forfeit their respective shares.” The meaning of the agreement contained in the subscription is solved by a construction of the charter, and that, under the view which I have taken, depends upon the hacknied but sound maxim, expressio unius ex-clusio alterius. The Company has the right to sue, which is incident to every corporation; under our Act oí 1792, (8 Stat. 175,) it has the right “ to recover, by suit, arrears and debts from its members in the like manner as it might recover the same from indifferent persons.” But it can sue neither member nor indifferent person for that matter wherein the charter, by express grant of a special remedy, different from a suit, has, by implication, negatived all other remedies. It seems to me that where, as in the charter of this company, forfeiture is mentioned in immediate connection with the payment of subscriptions, as the consequence of non-payment, to hold that the right of the company to sue, for the instalments required, was implied, and the expression of the remedy, by forfeiture, was intended to make it merely cumulative, would be to hold that the expression of the less includes the greater, and would contravene the principles of interpretation applied to the most favored instruments, much more those which prevail in construing grants of powers to corporations.

The forfeiture of shares, as a remedy for non-payment of subscriptions, has been familiarly known in this State. In almost the same words which are used in the charter of this company, it has been introduced into the charters of banks and companies for public improvements, since 1810, when the first charter for a bank was granted, in anticipation of the subscription and payment of the stock. I believe that, before the present, there has been no attempt, under any bank charter, or any charter for a public improvement, to compel payment of a subscription by suit, when the remedy by forfeiture had been provided; although numerous occasions have occurred, especially under the charter of the Louisville, Cincinnati and Charleston Railroad, when it was highly desirable for the advancement of the contemplated enterprise, and for the interest of the stockholders, that delinquent subscribers should have been compelled to perform their engagements, if their subscription could have been interpreted to mean an express promise to pay their shares without condition. A case lately arose where the vestry and wardens of an incorporated church sued a member for an assessment on his pew, although the charter gave, for non-payment of assessments, the remedy by sale of the pew; but that case was settled or abated before it .came to decision. In the case of Palmetto Lodge vs. Hubbell, (2 Strob. 458,) a distinction was made, on the Circuit, between a corporation, whose shares have a money value, and a mere charitable one, which has no stock tangible or accessible ; and, in that case, the subscription contained an express promise “ to pay all legal démandsmoreover, it may be observed that, there, suspension, which was argued to be an exclusive remedy, was not mentioned in the charter, but was provided by a by-law, which was construed to shew that the obligation to pay subsequent dues was not arrested by the suspension. I think that the general sense of this community may well be said so to have settled the construction given to the express grant of forfeiture, as a remedy for non-payment of shares subscribed, that legislators and stockholders might fairly be supposed to have acted in conformity with that construction, even if its propriety was more doubtful than I think it is. Confirmation of this may be drawn from the Acts of the Legislature concerning this company, and cotemporaneous Acts. In 1846, when the charter of the company was. renewed and re-granted, with some amendments unimportant here, a charter was granted to the Charlotte and South Carolina Railroad Company, which contains the grant (for the first time expressly made in this State) of the power to recover instalments of subscription by action of debt, in addition to the special remedy by forfeiture: (11 Stat, 462.) And, in 1849, after the subscription of the present defendants, (11 Stat. 575,) by an amendment of the charter of this Greenville and Columbia Railroad Company, it was provided that subscriptions “may be enforced in any Court of law in this State, any law, usage or custom to the contrary notwithstanding, without any pretence of forfeiture whatever, except as the said company may choose to declare forfeitures to enforce collections.” If the power claimed now might have been implied, why was it so specially granted to the Charlotte & S.'C. Company? If it existed before, why was it asked by this company and granted to it in 1849 ?

On this subject there have been conflicting decisions in the United States. The cases are all collected in the 15th ch. of Angel & Ames on Corporations, and have been cited in an able argument, made in this Court, by the appellant’s counsel. Of these cases, most of those opposed to the views I have ventured to express, seem to me to be liable to just objections which may be made to their reasoning, or to be distinguished by some material circumstance from the case now in hand. For instance, in Instone vs. Frankfort Bridge Co., (2 Bibb, 577,) the rights and immunities which, under the charter, attached to a member, and which the defendant acquired by his subscription, were held to constitute the consideration for his promise to pay, which, by construction, was found in the subscription; and yet the obligation to pay is said not to be given by the charter, but to arise from the consent of the defendant; and the special remedy is held to be cumulative, not exclusive, because an affirmative statute does not take away the common law, when, by the common law, independently of the charter, no remedy by suit, or otherwise, could have been had on the subscription.

In the Tar River Navigation Company vs. Neal, (3 Hawks, 520,) and in the Selma & Tennessee Railroad Co. vs. Tipton, (5 Abr. 787,) the main question was, whether, under the provisions of the charter, the company had an existence. There was an express promise, in writing, to pay a certain sum of money; and, in the first of these cases, some stress was laid upon the use, in the charter, of may and not shall, which was supposed to leave a discretion to be exercised by the company. In Beene vs. The Cahaba & Marion Railroad Co., (3 Ala. 660,) no sum was required to be paid at the time of subscription, and the charter spoke of the liability of the subscriber, and gave power to the company to borrow money and contract debts on the credit of its stock — from which it was inferred that the sale of shares, authorized in case of non-payment, could not have been contemplated as the exclusive remedy against a stockholder, whose shares may be wholly unpaid, and whose withdrawal would, without any compensating advantage, bring embarrassment and loss upon his associates, who have advanced money in reliance upon his engagements.

It cannot, however, be disputed that the principles upon which these cases, and others that have been cited, were decided, support the present action. A choice must be made between opposing authorities; and my judgment cannot reach the conclusion that, under a charter like this, the subscription can be fairly construed into an unconditional agreement to pay the instal-ments called for; and that the provision for forfeiture was intended merely to introduce a cumulative remedy — a conclusion which, under any case that has been decided, I must reach before I can sustain a suit for an instalment as for a debt. For a long time past, in Acts of Parliament which have established companies in England for executing public enterprises, and in all the late railway Acts there, special provisions have been made for enforcing, by suits at law, payment of calls made in the prescribed mode upon stockholders. Without those provisions, I am persuaded that a special remedy, by forfeiture or sale, expressly given, would there be held to be exclusive, upon ,the same reasoning which, in Kirk vs. Nowill, (1 T. R. 118,) led Buller, J., to declare, that an Act which provided fine and ■amercement as the means of enforcing by-laws, negatived the right to employ other means. A direct consideration of the questions here presented seems, however, not lately to have occurred there, which may be accounted for both by the provisions made in late Acts, and by the greater influence which is there given to the doctrine of nudwm pactum, as applicable to subscriptions, than the decisions in this country would warrant us to give it here.

O’Neall, J., being president of the company, gave no opinion.

Motion dismissed.  