
    William Wyman vs. The American Powder Company.
    The owner of shares in a corporation, who refuse to give him certificates thereof on demand, or to recognize him as the owner thereof, but sell the shares to another person, may recover of the corporation in assumpsit the value of the shares at the time of his demand.
    The members of a partnership organized as a corporation, under an act obtained for the purpose, and the corporation purchased the property of the partnership at a valuation. In an action brought against the corporation by one of the members to recover the value of certain shares in their stock, of which he claimed to be the owner, but which the corporation had refused to give him certificates of, and had sold for non-payment of assessments, the plaintiff was permitted to give evidence of a verbal agreement between all the parties, previous to the purchase by the corporation, that the whole property of the partnership should be transferred to the corporation at the valuation, and that each partner’s interest in the partnership stock should be applied towards paying for his shares in the corporation. After the defendants had introduced evidence to the point, whether the personal property of the corporation was sufficient to pay their debts, the plaintiff was allowed to give evidence, that, at the time of the transfer to the corporation, it was understood by all the parties that the corporation had made money. The jury found, that the amount of the plaintiff's interest in the partnership was sufficient to pay all the assessments on his shares. It was held, that the admission of the evidence introduced by the plaintiff was no ground for a new trial. It was held, also, that an account of the plaintiff’s payments towards his shares in the stock of the corporation, drawn up under the direction of the general agent of the corporation for receiving all moneys advanced to pay for shares, was rightly admitted in evidence for the plaintiff.
    A stockholder and director in a manufacturing corporation, which has failed to comply with the provisions of Rev. Sts. c. 38, §§ 16, 17,19, 22, and who is therefore individually liable for its debts, is an incompetent witness in favor of the corporation in an action brought against it by one claiming to be a stockholder to recover the value of shares withheld by it from him.
    This was an action of assumpsit, commenced on the 7th of March, 1849. The plaintiff in his declaration alleged that the defendants, a corporation, were possessed of a capital of $56,000, divided into one hundred and twelve shares, on each of which had been assessed $500; that he, with the consent of the corporation, had subscribed for forty-two shares, and paid the assessments thereon, and was the owner thereof and entitled to certificates and to be regarded as a stockholder and entitled to a share of the profits, income and dividends; that in consideration of the premises, the defendants promised to regard him as a stockholder of forty-two shares, give him certificates and pay to him his share of the profits, income and dividends; yet though a reasonable time had elapsed, the defendants, though requested on the 28th day of September, 1848, and although $20,000 had been received and become due by defendants to plaintiff for his share of the income, dividends and profits, and although plaintiff had ever since been entitled to the forty-two shares and the income, profits and dividends aforesaid, had not made out and delivered certificates to the plaintiff, or regarded, held or treated him as a stockholder, or paid him any income, profits or dividends, but had wholly refused so to do. The declaration contained another special count, substantially like this, except that the plaintiff omitted the allegation relative to the assessments and the payment thereof, and alleged that he paid and satisfied to the corporation for and upon the forty-two shares, large sums of money, to wit, $25,000, and was the lawful owner and possessor thereof and was entitled, See., yet although $20,000 had become due and payable on said forty-two shares, the defendants, Sec. To these were added the money counts, under which the plaintiff filed no specification, none having been called for.
    The defendants pleaded the general issue and filed a specification of defence, which stated, in substance, that the plaintiff was not a member of the corporation; had not paid for shares therein, and was not entitled to any certificates, income, profits, or dividends; that if the plaintiff ever had any right or interest in any shares, they had been sold for non-payment of assessments thereon; that the statute of limitations precluded all demands; and that the form of action was not appropriate, and that the suit could not be maintained in this or in any form.
    
      At the trial before Metcalf.\ J., the counsel for the plaintiff, in opening his case, stated that the plaintiff sought to recover the value of his shares in consequence of being deprived of them, and not any special damage for the mere want of certificates or for any dividends or profits. On this opening, it was insisted for the defendants, that the action in its present form could not be maintained, and that a nonsuit ought to be entered; but for the purpose of the trial the court ruled otherwise, reserving the point.
    In support of the action the plaintiff introduced articles of partnership, dated May 1, 1835, between the plaintiff, Nathan Pratt, Stanley, Reed & Co. and Tucker & Williams, under the name of the American Powder Company for five years, by which the plaintiff was to be interested three eighths, Pratt three eighths, Stanley, Reed & Co. one eighth, and Tucker & Williams one eighth. He also read the act of the 22d of February, 1841, (St. 1841, c. 32,) incorporating the same parties, under the same name, with power to hold real estate to the amount of $40,000, and the whole capital not to exceed $100,000. The plaintiff then showed, from the records of the corporation, produced at his request, the acceptance of the act, January 22d, 1842, all the above parties being present; that at the same meeting by-laws were passed fixing the capital stock at $56,000, in one hundred and twelve shares of $500 each; that a subscription paper to said stock was then produced, read and ordered to be filed, which subscription paper was produced at the trial, and by which it appeared that plaintiff subscribed for forty-two shares, Pratt for forty-two shares, the firm of Stanley, Reed & Co. fourteen shares, and Tucker & Williams each seven shares, being the same proportion in which they were respectively interested in the partnership.
    The plaintiff further read in evidence by-laws passed at the same meeting, providing for the choice of a president, treasurer, four directors and a clerk, and also providing that there should be no increase of the capital stock, unless at a meeting specially called for that purpose; and further showed by the records that the plaintiff was elected president and one of the directors, and so continued until his resignation on the 4th of March, 1843, under the circumstances hereinafter mentioned. The plaintiff further read in evidence a vote of the stockholders at an adjournment of the same meeting held February 7th, 1842, authorizing and instructing the directors to purchase of the partnership the whole or any portion of their real and personal property, for such price or prices and on such terms and conditions as the directors might deem expedient, and to receive conveyances and transfers thereof hi such manner and form as they might think proper: also, a vote at an adjournment of said original meeting held February 16th, 1842, all the stockholders being present or represented, “ that an assessment be laid of $500 on each share for the purpose of buying the property belonging to the voluntary association;” also, a vote to purchase the real estate at $30,000, the machinery and fixtures at $18,000, and all the personal property at $30,000, and appointing a committee to receive the transfer; and a vote at a meeting held on the 21st of February, 1842, when the committee reported that they had received a deed of the real estate, on the 18th of February, 1842, and a deed of sundry machinery and fixtures, on the 21st of February, 1842, approving and accepting the report.
    The plaintiff next proposed to show, by the testimony of members of the old copartnership, who signed said subscription paper and became and were recognized as members of the corporation, but who have since sold then stock therein, that it was verbally agreed between all the parties, that the whole property of the copartnership should be transferred to a corporation, in which each member should take the same proportionate interest as he had in the partnership; that the capital stock should be fixed at $56,000, although, as the plaintiff insisted, the proofs would show, the partnership property largely exceeded that sum; that the sums contributed to the partnership stock by each party, with compound interest thereon, should be applied towards the payment for the shares of such party in the corporation; the deficiency, if any, to be paid by him to the corporation, and the surplus, if any, paid to him by the corporation, either in money or in stock ; and the corporation to pay any debts of the partnership ; that, in fact, under such agreements the subscription was made, the property transferred and the transaction consummated.
    To this the defendants objected as incompetent evidence, upon the ground that it was attempting to prove a paro, agreement to pay assessments by transfer of partnership property, when as he averred no assessment was then made; but the objection was overruled and the question reserved. The plaintiff then introduced as a witness, William Tucker, a member both of the partnership and corporation, and other documents and evidence tending to establish the foregoing facts.
    The agreement and other facts, as well as the accuracy of the recollections and statements of said Tucker & Williams, was denied by defendants, who introduced the testimony of William H. Skinner, John S. Tyler and other evidence, for the purpose of controlling the same, but the judge who tried the case having declined to report the evidence upon the defendants’ motion for a new trial, on the ground of the verdict’s being against the weight of evidence, the testimony given at the trial is not here set forth, except so far as is necessary to the understanding of the objections made to parts thereof by the defendants, and overruled by the court.
    In the course of the ti-ial, the defendants inquired of Tucker, Skinner and others, as to the amount of the debts of the company and as to whether the personal property of the company was sufficient to pay its debts.
    The plaintiff also interrogated the witness Williams, who was subsequently called by him, as to whether it was or not, at the time of the transfer to the corporation, understood by all the parties, that the company had made money, which was objected to, because the answer would be impertinent; but the objection was overruled, and the witness answered in affirmative.
    Tucker testified that Nathan Pratt was the manufacturing agént of the partnership and of the corporation; that most of the payments into the partnership stock were made directly to said Pratt, but part of them to Stanley, Reed & Co., the selling agents; that he considered the transfer of his interest in the partnership, payment for his shares, and that Pratt did all the business; that at the time of the agreement to put the partnership property into a corporation, no means were taken to ascertain what each had paid; that it was generally understood that all but one of the partners had paid more than enough; that afterwards, but whether previous to the adoption of the charter, he could not say certainly, John S. Tyler was agreed upon to make up the accounts, and the accounts were handed to him to make up; that all the parties did not appear together before Tyler; that Pratt appeared to be principally there to see to it.
    The plaintiff also called as a witness William Raymond, Jr., who stated, that he had occasionally been employed as an accountant by Pratt, while agent at the works ; that about February 1st, 1842, he made three accounts at Pratt’s request from memoranda furnished by Pratt; that after he had made them, he gave them to Pratt, and told him if.the interest was not correct, he would correct it; and that Pratt examined them and put them in his pocket. The plaintiff produced three accounts, which witness verified as being the accounts so made by him for Pratt. These papers purport to be statements of the amounts paid into partnership stock by the plaintiff, Stanley, Reed & Co., and Tucker & Williams, with interest yearly. The defendants objected to their being read in evidence, and also to the testimony of witness as to the acts and declarations of Pratt, as it did not appear that he had authority to bind the defendants in this matter, or that the papers had been recognized by them; but the court admitted the paper purporting to be the statement of the plaintiff’s account, reserving the questions. By this account it appeared that the plaintiff’s advances to the partnership paid to Pratt was, with interest, $22,000.
    The plaintiff also proved a demand made September 28th, 1848, by him on Hyde, the clerk, and Pratt, the treasurer of the corporation, for certificates for his forty-two shares and of the dividends and profits, which were refused; that the plaintiff then demanded of said clerk payment for the property owned by him in the partnership, and transferred to the corporation, which was also refused; and on November 22d, 1848, the plaintiff' demanded of Pratt, treasurer, and Hyde, clerk, an account of dividends on his forty-two shares, which was refused.
    The defendants thereupon stated their points of defence, namely: That as to the claims for dividends, no dividends had, in fact, been declared nor ought to have been; that the plaintiff was not entitled to certificates, as he had never paid the sum due for assessments on his shares, nor sustained damage for want of them, and that all the plaintiff’s interest in the stock had been extinguished by regular sale of his shares for non-payment of assessments; that a vote had been passed by the corporation, that certificates be issued to those only, who had paid their assessments; that the defendants would introduce evidence to show, that the agreement between the parties was, that each member' of the old copartnership should be charged with his part of the cost of that concern and credited with the sums paid in by Mm towards its stock, and if thereupon the former exceeded the latter, he was to pay the balance before he would be entitled to any certificate of shares; and that upon the account thus stated the plaintiff had not paid in full for his shares, and that the same were regularly sold for the non-payment of said balance.
    The defendants thereupon called William H. Skinner, a member of the firm of Stanley, Reed & Co., who sold out his stock to Nathan Pratt in October, 1842, and who testified that he was present when the agreement was made, and whose testimony, as defendants contended, tended to show that it was agreed between the parties, that each party should be credited with his payments towards the partnership stock, adding interest, and charged with his proportion of the cost or loss of the old company, and the balance, if any, applied towards the payment of his shares in the corporation, or if the same amounted to more than his shares, the same to be repaid him by the corporation.
    Skinner was examined by the defendants as to the debts of the company, some of which he stated, and that there were others about which he could not state from personal knowledge. He also stated, that the plaintiff paid into the partnership stock, through Stanley, Reed & Co., the sum of $2400, on the 26th of December, 1836, besides the sum paid by him to Pratt.
    The defendants also called John S. Tyler, who testified that in February, 1842, he was employed to make up the accounts, a great mass of papers and documents was handed to him;- and that the object he understood to be to ascertain how much each partner had contributed to make up the mass of the property of the concern, and that he was told, that what each party had contributed to make up the property of the concern was to bear interest with annual rests; that he was engaged several months in the matter, and that the whole accounts were delivered, as corrected, on or before 20th of March, 1843, and between the 4th of March and that time; that the accounts of the other parties, except Pratt’s, were comparatively brief, but that Pratt, being the general agent, had received what everybody else had paid, and that Pratt had kept accounts of what had been received and paid by him. Tyler exhibited the accounts made up by him, by which it appeared that he had stated a several account-with each member of the payments made by him, with interest made up with annual rests; he had then stated another account, called stock account, made up of the aggregate of all the payments, and divided this aggregate by the amount of the respective interest of each party in the partnership; each party was then debited with his portion of stock account, thus ascertained and credited with his payments; and he testified that, by this mode of stating the account, plaintiff’s share of the stock account would be $32,104.60 and his payments $25,231.14. The witness further stated that he understood he was to ascertain how much was paid in or received out by each party and state the balance, but nothing was said how those who had paid more were to get their pay, or those who had not paid were to pay. He also verified a paper, as having been used by him, containing an account of the plaintiff’s payments, exhibiting the same items as the paper verified by Raymond, to which was subjoined a memorandum of witness as to an item of $1,000, that “ Mr. Pratt says it was embraced in an agreement to take up a mortgage, which has not yet been paid.” The witness further stated that after the failure of the Phoenix Bank, October 3d, 1842, at Pratt’s request, and in the absence of the plaintiff, he opened a new account, and charged back to the plaintiff $7,717.84, “ as not having been received by Pratt as he declares,” and at the same time credited the same amount to Pratt, but that the stock account was not altered in conformity.
    The defendants then showed by S. J. Thomas, auctioneer, that he was employed by Pratt to sell at auction, pursuant to an advertisement, the forty-two shares of the plaintiff for nonpayment of assessments, amounting to $15,863.82, and that the same were sold to Windsor Fay on the 3d of June, 1843, for $1.25 a share, and the deed to Fay was produced.
    The defendants then offered Nathan Pratt as a witness; among other things to sustain the correctness of the alterations, made at his request by Tyler in the accounts as aforesaid, and to show that the company was embarrassed and the shares were worth no more than the auction price, and generally as a witness in the case. It being shown that the witness had been a director and a stockholder from the outset, until within two or three weeks of the trial, and treasurer from March 4th, 1843, down to the said period, and that neither the corporation or directors had at any time complied with either of the provisions of the Rev. Sts. c. 38, §§ 16, 17, 19, 22, the plaintiff objected to the competency of the witness, that in the event of a verdict in the plaintiff’s favor, either on the ground that the corporation were liable to account with, and pay him for his share of the partnership property, or upon the ground that they were so liable to the plaintiff for the value of his shares, witness would be liable to pay and satisfy the plaintiff’s judgment; and the court sustained the objection, reserving the question, and the witness was excluded.
    It appeared by the evidence that Tucker & Williams had, prior to the 23d of March, through Pratt, agreed to transfer their interest in the stock, and that Stanley, Reed & Co. had disposed of their interest in the stock in October, 1842, to Pratt.
    It further appeared by the testimony of "Williams, that while he was a member of the corporation, no dividends were declared. The testimony of Williams, introduced by the plaintiff in the close, tended to confirm the testimony of Tucker as to the principal points of controversy.
    At the close of the plaintiff’s case, and again at the conclusion of the defendant’s evidence, the defendants insisted that there was not evidence sufficient to go to the jury to maintain the plaintiff’s case; that no evidence had been offered, that any dividends had ever been declared or ought to have been; that the plaintiff had shown no damage sustained, for the want of certificates, if he were ever entitled to any, which was denied; and that the plaintiff had not shown any damage for any loss of any shares in the corporation, if he were entitled to any shares or damage, which was denied; and at any rate, that plaintiff could recover no damages for loss of his shares, if he had any right thereto, which was denied, as in this suit, he sets forth and declares himself to be the owner of the forty-two shares; and the defendants thereupon insisted that a nonsuit or verdict for them ought to be entered. But the court ruled otherwise, reserving the question.
    The defendants further contended, that the agreement set up by the plaintiff was not supported by the evidence, but that the actual agreement was such as the testimony of Skinner and the defendants’ other evidence tended to show; that the alteration of the plaintiff’s account by Pratt’s direction was correct, and the shares legally and properly sold; and "that if upon making up the accounts in the manner contended for by the defendants, the plaintiff’s balance was not sufficient to pay for his forty-two shares, he was entitled to no part thereof until he paid the balance.
    The plaintiff, on his part, contended that the evidence, and especially that of Tucker, established an agreement of the character set forth in his opening, and that, if the agreement was that the account should be stated and the matter adjusted as alleged by Skinner and as contended for by the defendants, yet to the extent of the acknowledged balance of said account, before it was altered by Pratt’s direction, he was entitled to receive shares in said corporation.
    No claim was made by the plaintiff in the close to recover for any dividends or for dividends that ought to have been declared, nor that he had shown any evidence of special damage for want of certificates.
    The judge instructed the jury in substance as follows: That for the purposes of this trial they would consider the action to be right in form and well brought; that the claim for loss of the shares was not barred by the statute of limitations; that the lapse of time or statements of the claim, insisted upon by defendants, would be allowed its proper effect in weighing the evidence.
    The judge then recapitulated the evidence as to the history of the partnership; the interest of the parties therein; the obtaining of an act of incorporation; the organization thereunder; the agreement as to the division of stock; and proceeded to state, that it seemed from the evidence that no dispute had arisen, as to the amount contributed by each party to the partnership stock, until after the organization under the act, when the accounts were put into Tyler’s hands, and when all the parties saw, or might have seen, the accounts; that after the failure of the Phoenix Bank, and while the papers were in Tyler’s hands, the plaintiff alleged that Pratt had suggested to Tyler, that an alteration should be made by taking a certain sum from the plaintiff’s account and crediting the same to him, Pratt; that as to the correctness of these proceedings, and which of the accounts was true, the original or altered one, the jury must determine from the evidence; that there seemed to be no dispute that Wyman had put into the partnership about $24,000; that as to the question, what the agreement was as to the mode of stating the accounts of the partners, and the payments for their respective shares, the question was, how all the parties understood it; that if the jury believed that the agreement was as testified by Tucker, and that the plaintiff’s account had been wrongly reduced by Pratt’s direction, or otherwise, then the plaintiff would be entitled to recover for forty-two shares; but if the jury found the agreement to be as the defendants considered it to be, and as stated by Skinner, and that the plaintiff’s account, as first stated, was incorrect, then the plaintiff would be entitled to recover the number of shares, which the balance thus found due him would amount to, which was thirty-one; but that the jury might find for the plaintiff upon their view of the evidence any number of shares, forty-two, thirty-one, or any less number, if they found for the plaintiff; that if the jury found for the plaintiff, they were to fix the damages as of September 28th, 1848, and add interest from that date. As to the legality of the formal proceedings, under which the plaintiff’s shares were sold, the court ruled for the purposes of the trial, that the same were correct.
    The jury found for the plaintiff for $28,071.29. After the jury had rendered their verdict, the presiding judge, at the request of the defendants’ counsel, and with the assent of the plaintiff’s counsel, inquired of the jury upon what ground they had found their verdict, and the jury stated that they had found, that the agreement between the parties was as stated by the witness Tucker.
    If the rulings or the refusals of the court to rule and instruct the jury, as requested by defendants, should be deemed by the whole court ground to set aside the verdict, a new trial was to be ordered; otherwise judgment was to be entered on the verdict.
    
      B. Rand and R. Choate, for the defendants.
    The cause of action, as set forth in the special counts, and as stated by the plaintiff at the trial, is the non-delivery of the certificates of stock; and under this declaration the plaintiff could only recover nominal damages. Chester Glass Co. v. Dewey, 16 Mass. 101. No recovery could be had under the money counts for want of the specification required by rule 48 of this court, 24 Pick. 399. The plaintiff’s evidence did not support his claim, and therefore he ought to have been nonsuited. Angell & Ames on Corp., (3d ed.) 303, 304; Thayer v. Boston, 19 Pick. 516.
    Assumpsit is not the proper form of action. Strong, Peti 
      
      tioner, 20 Pick. 484; Tapping on Mandamus, c. 2. And in assumpsit only the actual proceeds of the sale can be recovered. Jones v. Hoar, 5 Pick. 285 and note; Lindon v. Hooper, Cowp. 416; King v. Leith, 2 T. R. 144. If the plaintiff could maintain his action at all, it must be upon a cause arising in June, 1843, and in reference to that the damages ought to have been assessed. Hyde v. Noble, 13 N. H. 499; Reynolds v. Shuler, 5 Conn. 325, 326; Schuylkill Navigation Co. v. Farr, 4 W. & S. 362.
    The evidence of Raymond was improperly admitted, there being no sufficient proof of Pratt’s authority to state the account.
    The testimony of Williams, that it was understood “ that the company had made money,” was irrelevant, insufficient, and incompetent to affect the defendants, and calculated to mislead the jury.
    Pratt was a competent witness. The provisions of the Rev. Sts. c. 38, §§ 16, 17, 19, 22, reasonably construed, do not apply to this case. The plaintiff’s claim is not a “ debt of the company,” within the meaning of the statute.
    
      S. Bartlett and A. H. Nelson, for the plaintiff.
   Dewey, J.

1. As to the objection to the form of the action. This is not a case of conceded ownership of shares by a party seeking a certificate as the evidence of his title, but it is a case of a controverted title, the defendants wholly denying all interest in the plaintiff as to the shares in their stock, which are the subject of controversy. The allegations being that the defendants refused upon demand to give the plaintiff the usual certificates of ownership, denying as to him all right to the shares, or privilege as owner thereof; if the claim of the plaintiff is well founded, he may recover damages to the whole extent of his interest in the shares. This general principle was fully declared by this court in the case of Hussey v. Manufacturers' and Mechanics' Bank of Nantucket, 10 Pick. 421. It is true that the form of that action was tort, and not assumpsit. But other cases have most distinctly recognized the right to declare in assumpsit in cases like the present. The point was directly raised, and so held, in Gray v. Portland Bank, 3 Mass. 364, and in Sargent v. Franklin Insurance Company, 8 Pick. 90. The case of Bank of Columbia v. Patterson, 7 Cranch, 299, 306, is also to the point. And in Burnett v. Lynch, 5 B. & C. 589, 609, the principle will be found stated and illustrated by Littledale, J. The case at bar shows sufficient privity between these parties to raise an assumpsit, if the plaintiff establishes a valid title to the shares. The form of the action is therefore no objection to a recovery by the plaintiff.

2. It was competent for the plaintiff to show payment ol his proportion of the stock of the corporation. The proposed arrangement between the partners, being in fact the identical persons who were incorporated, as to what was to be the system to be adopted after obtaining an act of incorporation, was of itself of no moment, and not binding, unless acted upon by the corporation, the only material point here being as to the actual transfer by the plaintiff, and acceptance by the defendants, of the interest and rights of the plaintiff in the partnership property, in payment of his shares in the corporation ; and the previous proposal to this effect is only competent as explanatory, and tending to show the whole history of the proceedings of the company, and thereby establish the fact of receipt of payment by the corporation. It seems to us, however, that the defence itself assumes and sustains the arrangement thus set up by the plaintiff, that the interest of each partner in the joint-stock company, and all payments made by any one in reference thereto, were to be allowed him by the corporation, who were to take the partnership property; and the same is abundantly established by competent evidence ; and the only question controverted in this part of the case seems to be the amount, which the plaintiff was entitled to be credited in the account towards payment for his stock in the corporation. On the one side it was insisted that this sum was fully adequate to discharge him from any further advance for his shares, and on the other side that it was altogether insufficient. This point was submitted to the jury upon conflicting evidence, who found this fact in favor of the plaintiff.

3. As to the evidence of Williams, that at the time of the alleged transfer of the shares it was understood by all that the company had made money, it might have some slight bearing upon the question, whether the corporation would probably have accepted the transfer of the individual partners’ interest in the concern toward payment for the shares. It is the opinion of the court, that under the circumstances of the case, and, after the evidence which had already been introduced, the admission of this evidence furnishes no sufficient ground for setting aside the verdict.

4. The paper, containing the account of the plaintiff’s payments into the partnership stock, and as to which Raymond testified, was competent evidence to go to the jury, being an account drawn up by the agent of the corporation. The precise nature of Pratt’s agency it may be difficult to define, but from the testimony of Tyler it appears that Pratt was the general agent for receiving all moneys advanced towards partnership stock. This account was drawn up under his direction, and in the ordinary course of business, and was evidence proper to be submitted to the jury.

5. The testimony of Pratt was properly excluded. For the failure to comply with the provisions of Rev. Sts. c. 38, §§ 16, 17, 19, 22, subjected the members of this corporation to liability individually for all its debts; and we are of opinion that the claim of the plaintiff, now in suit, was a debt of the corporation, within the meaning of those sections. Carver v. Braintree Manuf. Co. 2 Story R. 432. Pratt was a member at the time the liability arose, and up to the time the action was commenced.

6. The rule of damages, as stated by the presiding judge, was correct, the action being assumpsit, and the recovery being for refusal to comply with plaintiff’s demand in 1848.

Judgment on the verdict.  