
    Elihu Cutler versus The Middlesex Factory Company.
    Under St, 1808, c. 65, regulating manufacturing corporations, no action can be maintained by a manufacturing corporation, either against a stockholder or against his executor, to enforce the payment of assessments laid on his shares; and consequently such corporation cannot set off a claim for unpaid assessments, in an action against it by the executor of the stockholder, for a debt due to the stockholder.
    Assumpsit upon a promissory note, dated June 27, 1826, for the sum of $1181-76 made by the defendants, and payable to Aaron Eames, the plaintiff’s testator. The declaration contained also the money counts.
    The defendants filed an account in set-off, in which they claimed to set-off the assessments, amounting to the sum of $271, due on two shares in the corporation, alleged to have been owned by the testator.
    At the trial, before Putnam J., the plaintiff offered evidence to prove that the shares had been transferred by the testator by deed, before the assessment was laid. The defendants contended that the transfer was not sufficient, because the deed had not Deen recorded in a book kept by the clerk oí the corporation for that purpose.
    The defendants were incorporated by St. 1811, c. 66. The name of the corporation was changed by St. 1819, c. 97.
    The defendant was defaulted. Judgment was to be entered as the Court should determine upon the facts.
    
      Hoar for the defendants.
    
      Keyes for the plaintiff.
   Shaw C. J.

delivered the opinion of the Court. The question arises upon an account filed in set-off, in which the defendants claim to set-off assessments due on certain shares, alleged to have been owned and held by the testator in his lifetime. The executor contends, that the testator had duly transferred these shares, and was not the proprietor of them when the assessment was laid. The case has been argued mainly upon the question whether the assignment was valid to transfer these shares ; but we think it involves the more general question, whether supposing the' transfer not valid, the estate of the testator in the hands of the executor is liable for assessments. A set-off is substantially a cross action. The inquiry then is, whether if the defendants were plaintiffs, they could maintain an action against the executor to recover the assessments ; and the Court are all of opinion, that they could not. The only compulsory mode, which a manufacturing corporation has, to enforce the payment of assessments, is by sale of the share. By law, the assessment is a lien on the share. The executor has an option to redeem the share for the benefit of the estate, by payment of the assessment, as ne would have to redeem any other pledged property ; and this option he will exercise according to his views of the interest of the estate. This corporation was established by St. 1811, c. 66. The name was changed by St. 1819, c. 97, but its character and responsibility were not thereby changed. The liability of this corporation depends upon the St. Í808, c. 65, the original act regulating manufacturing corporations, to the provisions of which express reference is made in the original act of incorporation. By virtue of this act, the remedy to enforce the payment of assessments, was by sale of the share ; no action would lie, either against the proprietor himself or his executor , and, of course, the claim of the defendants to set-off these assessments, cannot be maintained. See Ripley v. Sampson, 10 Pick. 372.

Judgment for the pMMtiff.  