
    The Middlesex Turnpike Corporation versus Thomas Locke.
    Where the directors of a turnpike corporation, with the assent of the corporation, procured an act of the legislature, altering the course of the turnpike road, one who, before such alteration, had subscribed for a share, and had expressly promised to pay all assessments, was held not to be answerable in an action for the assessments.
    The declaration in this action was upon contract, and contained two counts. In the first count the plaintiffs aver that, in consideration they had permitted the defendant to become a member of the corporation, and a proprietor of one share of the stock thereof, and to be entitled to his proportion of all tolls and benefits which should arise from the said turnpike, he, by a memorandum in writing by him subscribed, purporting that the whole expense of making said turnpike was estimated at 40,000 dollars, and that it was proposed that there should be four hundred shares, promised and engaged to take one share, and to pay all assessments that should be made on the said share. The plaintiffs then aver that two several assessments had been made on each share, amounting in the whole to two hundred and forty dollars, of which the defendant had had notice, and refused to pay them. The second count is on a promissory note of hand made by the defendant to the plaintiffs for ten dollars, on which no question arose.
    * The general issue being pleaded and joined, the cause was tried before the Chief Justice at the sittings here after the last October term, and a verdict taken for the plaintiffs by consent of parties, subject to the opinion of the Court upon the following case reported by the judge: —
    The said corporation was created by the statute of 1805, c. 12, which passed June 15th, 1805, and which is to be considered as a part of this case. Afterwards, on the 30th of July, in the same year, the defendant subscribed a memorandum of the following tenor : — “ The estimate of the whole expense of making the Middlesex turnpike is 40,000 dollars, and it is proposed that there be four-hundred shares. We, the subscribers, hereby engage to take the number of shares set to our respective names, and pay all assessments which may be made thereon.” And to his name he set one share. Afterwards there was duly assessed to each share, by two several assessments, the sum of two hundred and forty dollars, of which the defendant had due notice, and refused to pay them to the corporation. On behalf of the defendant, his counsel insisted that he was exonerated from his subscription on two grounds : that before either of the assessments was made, and after his said subscription, he had legally transferred his said share to one Moses Harrington; and that, after his said subscription, and also before the said assessments, the said turnpike road was differently located, pursuant to an act of the General Court, by the procurement of the directors, and with the assent of the said corporation. To make out this defence, he proved that on the 10th of May, 1806, he had agreed with the said Harrington to transfer his said share to him; that on that day he endorsed on the original certificate of his said share a transfer of the same under his hánd and seal to the said Harrington, and carried the same to the clerk of the said corporation, to be by him recorded; that had the same been so recorded, the transfer would have been legal according to the by-laws of the said corporation; but the clerk refused to receive and record the same, because * the treasurer of said corporation, who, by the same by-laws, was to sign the original certificates of the shares, had not certified to him a list of the original stockholders in the said corporation, although he had signed the defendant’s said original certificate; that the defendant then delivered his said original certificate to the said Harrington, with the transfer aforesaid endorsed thereon, all which was done before either of the assessments aforesaid were made. On the second ground of defence set up by the defendant, it was proved, that by the statute of 1806, c. 7, the plaintiffs were authorized to alter the course of said turn pike road from Bisket bridge in Tyngsborough to the fork in Bed ford; that this act passed on the application of the directors of the said corporation, with the assent of the said corporation at a meeting thereof duly holden, which last statute is also to be considered as a part of the case, and which passed before either of the said assessments was made, but after the defendant had signed his said subscription; that the turnpike road has been altered pursuant to the said last statute; that the defendant lives between the said fork and Cambridge rocks ; and that the turnpike has not yet been made between the said fork and Medford.
    
    The jury having assessed the damages severally on each count, it was agreed that if the Court should be of opinion that the verdict was rightly taken for the plaintiffs on both the counts, the plaintiffs should have judgment upon it; otherwise the verdict should be so amended, that the plaintiffs should have judgment only on the second count.
    The cause stood continued to this term for argument; and now, Stearns, for the defendant, contended, that this contract'was void as a nudum factum, and without consideration, involving in it neither a detriment to the plaintiffs nor a benefit to the defendant. At any rate, if the defendant was bound on his part, there was nothing by which the plaintiffs were bound to him. The engagement was all on one side and therefore not binding. 
    
    * Before the assessments were made, the defendant had virtually ceased to be a proprietor, if he ever had been one.
    He did all that was incumbent upon him, and all that was in his-power to do, to transfer his share of the stock to Harrington. The wrongful conduct of an officer of the plaintiffs prevented what was further necessary to be done according to their by-laws ; and of this the plaintiffs ought not to be permitted to avail themselves. 
    
    But the point, on which the defendant most relies, is, that he never consented to become a proprietor in the turnpike, as it was in fact located and made. He was induced to subscribe originally, on account of the particular convenience to him of the turnpike as originally directed. He would perceive no such' convenience in the other route.
    
      He would never have subscribed to aid the latter; and the plaintiffs have no right to transfer his subscription for the promotion of one road to that of another, without his personal assent.
    
      Dana for the plaintiffs.
    
      
      
        Cooke vs. Oxley, 3 D. & E. 653.
    
    
      
      
        Huddersfield, Canal Company vs. Buckley, 7 D. & E. 36.
    
   By the Court.

We decided, in the case of The Andover and Medford Turnpike Corporation vs. Gould, that where the members of a turnpike corporation agree expressly to pay the assessments that may be made by the corporation, an action lies for the recovery of such assessments. — To the objection that the defendant had done all in his power to assign his share, we do not attach much weight. Such a transfer might be made to a pauper, with the intent merely to rid the proprietor of his obligation to the corporation, and to deprive the latter of all remedy but from the sale of the shares, which is well known to be. a fruitless remedy. If, how ever, it was done bona fide, and with no design to deprive the corporation of their legal remedies, — and there is no ground to think otherwise of the transaction in the case before us, — it would require consideration, before we should hold the original proprietor answerable for the assessments; especially when he had been prevented from completing the transfer in the mode prescribed in the by-laws of the corporation, by their own officer. — But it is not necessary to *give an opinion on this objection, as we are satisfied that on the last point, made by the counsel for the defendant, he must prevail. The plaintiffs rely on an express contract, and they are bound to prove it as they allege it Here the proof is of an engagement to pay assessments for making a turnpike in a certain specified direction; and of the making a turnpike in a different direction. The defendant may truly say, Non hcec infcedera veni. He was not bound by the application of the directors to the legislature for the alteration of the course of the road, nor by the consent of the corporation thereto. Much fraud might be put in practice under a contrary decision. We are not, however, to be understood as deciding that the general legal remedy by sale of the shares does not remain to the corporation in this case; although we are of opinion that the defendant is not holden by the express promise to pay the assessments, on which the present action is brought. According to the agreement, under which the cause was reserved at the trial for the opinion of the court, the verdict must be so amended, that the plaintiffs may take judgment upon the second count only, which is upon a promissory note not disputed. 
      
       6 Mass. Rep. 40.
     