
    Small, plaintiff in error, v. The Herkimer Manufacturing and Hydraulic Company, defendants in error.
    After a corporation, pursuant to a provision in its charter, has forfeited the stock of a" subscriber for non-payment of an instalment due upon his subscription, it cannot maintain an action to recover any part of such subscription.
    And where an action had been commenced to recover certain instalments of the subscription which had been duly called for, and then a further call was made, and the stock forfeited for non-payment thereof; held, that the subscriber might plead such forfeiturA in bar of the further maintenance of the suit.
    The right of a corporation to forfeit the shares of a subscriber for non-payment oi the calls made upon him, is not in the nature of a pledge or mortgage of the stock; aid the exercise of such right does not leave any farther remedy to recover the debt. The exaction of the forfeiture operates as a rescission or satisfaction of the contract.
    When a corporation under such circumstances exercises its right to forfeit the stock, and the stock is of greater value than the whole amount due on the subscription the subscriber cannot recover the surplus.
    fhe case of The Herkimer Manufacturing and Hydraulic Company v. Small, (21 Wend. 273, a*ul S. C. 2 Hill, 127,) overruled.
    The Herkimer Manufacturing and Hydraulic Company sued William Small in the supreme court, and declared in assumpsit on his subscription for twenty-one shares of the capital stock of the company. The fourth section of the plaintiff’s charter, (Laws of 1833, p. 191,) provides for a subscription to the capital stock, and makes it the duty of the directors for the time being to call upon the stockholders for payment of their subscriptions at such times and in such proportions as they should see' (it, under penalty of forfeiture to the company of their ''hares ana all ptemous payments made thereon, giving notice, (as provided in the act,) of such call. Pursuant to this provision a subscription was opened and signed by Small and others, •n the following form :
    ,£ The undersigned do hereby promise and agree to pay to the directors of ‘ The Herkimer Manufacturing and Hydraulic Company,’ named in the act of the legislature of the state of New-York, passed April 17th, 1833, entitled £ an act to incorporate the Herkimer Manufacturing and Hydraulic Company,’ or to their successors in the said office of- directors, the several sums set opposite to the names and shares subscribed by us in the stock of the said company, at such times and in such proportions as the same shall be required by the said directors, or their said successors, in pursuance of the said act; each of the said subscribers having paid at the time of subscribing hereunto the amount of per cent, on each share so subscribed. Dated this 11th day of "March, 1834.
    Names. Number of shares. Amount.”
    The declaration showed that in April, 1834, a call of five per cent, was made by the directors, payable within sixty days, and a like call of five per cent, payable within ninety days; that in July, 1834, a further call of seven per cent, was made, payable in August then next; that in October, 1834, a further call of seventy-three per cent, was made, payable as follows: thirteen per cent, on the 10th day of November then next, and ten per cent, on the first days of December, J anuary, February, March, April and May, then next. This suit was commenced in December, 1834, and the plaintiffs claimed to recover the amount of the calls which were then due, amounting to forty per cent, and which the defendant had neglected to pay.
    In March, 1835, the directors made a further call of ten per cent, being the residue of the subscription, payable on the 15th of May in that year, and the defendant having neglected to pay it, the directors, in June, 1836, passed a resolution forfeiting his stock for the non-payment of the call last mentioned. The defendant thereupon pleaded that call and the resolution of forfeiture in bar of the further maintenance of the suit, averring that at the time of such forfeiture the twenty-one shares of stock subscribed by him were of greater value than the amount demanded in the suit- and the interest thereon. The plaintiffs demurred to the plea, and the supreme court gave judgment in their favor on the demurrer. {See 2 Hill, 127.) Small then brought error into the late court for the correction of. errors, where the cause was argued, but not .decided for want of a quorum. It was then transferred to this court by the new constitution.
    
      A. S. Johnson, for plaintiff in error.
    I. The provision of the statute in question cannot be construed to create a mortgage to secure the subscription price. (Sess. Laws, 1834, p. 192, § 4; Dwarris on Stat. 6154.) (1.) The language of the statute is plain and intelligible; the term forfeiture is a legal term well understood, and involves necessarily a total loss of interest in the thing forfeited by the party suffering the forfeiture; under this statute the thing forfeited vests absolutely and beneficially in the company, and the former owner can have no benefit from it or its proceeds. (Keating v. Sparrow, 1 B. & Beat. 373; 2 Story’s Eq. Jur. 4th ed. 755, 757.) (2.) The construction given to the section in question by the supreme court renders the words 11 all previous payments made thereon ” of no effect, and thus violates the rule that a statute shall be so construed that all parts of it may have effect. (3.) This construction is contrary to the analogy of other statutes where nearly the same language is used, and where it is clear that no mortgage was intended to be created. (1 R. S. 2d ed. pp. 190, 191, §§ 50, 60.) (4.) After forfeiture the former owner cannot redeem, nor can he have the surplus, in case the stock be worth more than the subscription price, as would be the case if the stock were only mortgaged or pledged. (Sparks v. The Liverpool Water Works, 13 Ves. 428; Prendergast v. Turton, 1 Y. & C. New Rep. 98, 110, 112; Patchin v. Pierce, 12 Wend. 61; 2 Story’s Eq. Jur. 4th ed. § 1031.)
    II. The company have two distinct remedies against a delinquent subscriber, one a suit on the subscription, the other a forfeiture of the stock and all previous payments made thereon, each of which is a complete remedy, and covers the whole subject of litigation, and they may elect either remedy. (1.) When a remedy is given by statute in a case where a remedy also exists at common law, the party has his election to adopt one or the other; he cannot have both. (2 Coke’s Inst. 200; Co. Lit. 144 b, 145 a. § 219, and notes; Sharpe v. Warren, 6 Price, 131; Rex v. Robinson, 2 Burr. 803.) (2.) In such case, when either remedy is completed the other is barred. (Colden v. Eldred, 15 John. 220.) (3.) These principles are applicable to the present case and have been held applicable in this state and elsewhere. (Union Turnpike Co. v. Jenkins, 1 Caines’ R. 381, 390; S. C. in error, 1 Caines’ Ca. 86, 95; Instone v. The Franklin Bridge Co. 2 Bibb’s R. 576; Tar River Navigation Co. v. Neale, 3 Hawks, 520.)
    III. The substantial intent of the legislature in the section in question, is to give the company their election, either by suit to compel the performance of the contract to take and pay for the stock, or by forfe iture tó rescind the contract, and upon rescission to keep that which has already been paid, by way of penalty for the subscriber’s delinquency. (1.) The forfeiture terminates all relation between the parties, takes from the subscriber the whole consideration of his promise to pay, and leaves to the company their stock and the payments made on account of it. (Winter v. Livingston, 13 John. 54.) (2.) This clause has been in use in charters of incorporation in this state for a period of fifty years, as well as in other states of the union and in England. The effect of the exercise of the power of forfeiture has been universally understood to be to release the subscriber from his obligation to pay for his shares; and no case can be found prior to this, where a company has sought to enforce the subscription promise after forfeiture of the stock. (3.) The statutory forfeiture is of “ the previous payments’’ not previous calls; it cannot be extended by construction. (4.) The recital by the plaintiffs, in the resolution of their directors, that the forfeiture was declared by reason of the non-payment of the last call of ten per cent, does not vary the rights of the parties. The forfeiture—the rescission of the contract—is the substantial thing; the reason assigned for it is immaterial.
    IV. Upon these principles the defence set up by the plea, of forfeiture after suit brought, is a good bar to the further maintenance of the action. That which is a bar if it happen before the commencement of a suit, is alsc a good bar to its further maintenance when it happens after suit brought. (Covell v. Weston, 20 John. 414; 1 Ch. Pl. 7th Am. ed. 696.)
    
      J. A. Spencer, for defendants in error.
    The action of assumpsit well lies in this case upon the subscription for the shares of stock. This has been the settled law of the state for nearly half a century. (1 Caines’ Rep. 381; Caines’ Cas. 86, S. C.; 9 John. Rep. 217; 11 id. 98; 14 id. 238.) The action of assumpsit on a stock subscription is a common law remedy. The remedy by forfeiture is a cumulative statute remedy. The rule in such cases is, that where a common law remedy exists, and a new remedy by statute is given without taking away the common law remedy or without being repugnant to it, both remedies exist and may be resorted to. (5 Cowen’s Rep. 165; 2 Inst. 200; Com. Dig. Action upon Statute, C.)
    
    The declaration in this suit shows that calls of instalments to the entire amount of the subscription had been made and published prior to the commencement of this suit. The opinion of the supreme court shows that several actions had from time to time been prosecuted as the instalments fell due. It is therefore manifest that suits to the entire amount of the subscription had been commenced before the forfeiture was declared. The value of the stock forfeited was therefore equally applicable to the whole number of shares subscribed, to the entire debt of. $2,100. The plea only avers that it was sufficient to pay the forty per cent, for which this suit is brought and ten per cent, besides. Thus admitting that the stock was worth only one half its nominal amount. The plaintiff below, having a legal right to do so, applied the value of the stock forfeited to the payment of an equal amount on each share and on each in ■ stalment of each share called—in other words, pro rata—on the entire debt of $2,100, and not in payment of the per cent, of thq instalments for which this or any other suit was pending. Such, too, is the application which the law makes. The entire stock was forfeited, and credit to its value was to be given to the entire debt and every part of it equally.
   Gardiner, J.

The supreme court in this case held, that the stock for which the defendant subscribed, was a security in the nature of a mortgage, for the payment of a debt incurred by the subscription, and that a forfeiture for non-payment was, in effect, nothing more than a strict foreclosure. Upon this branch of the case I have nothing to add to what was written when the case was before the court for the correction of errors. The notion of a pledge, or mortgage, is now abandoned, and we are asked to sustain the judgment of the supreme court, after repudiating the reasons upon which it was founded.

I agree fully with that learned court, that the plaintiffs had a remedy by action; that the debt of the defendant, created by his subscription, was entire; the calls made by the company, merely ascertaining the amount, and the times when the instalments ot that debt should be paid. This is the view taken by the plaintiffs in their declaration, by their counsel in his points furnished upon the argument. Upon this admission, the authority of the supreme court, and the manifest import of the subscription, we are authorized to assume that the defendant contracted one debt of $2100, which he undertook to pay, at such times, and in such instalments, as the company might, by calls for that purpose duly made, designate.

The next question is, as to the effect of the forfeiture made by the corporation upon the debt of the defendant. The act incorporating the plaintiffs, establishes the capital stock, and the price of the shares; section two directs a subscription, and prescribes the .duties of the directors in making calls, and the right to forfeit the shares of subscribers for non-payment of the purchase money. (§4; Sess. Laws, 1833, pp. 191, 2.) The subscription must be construed, therefore, as if all the provisions of the statute, affecting the liability of the subscriber, or his title to the stock purchased by him, were incorporated in his agreement. This has never been questioned. The subscription, probably with the design of removing all doubt upon this subject, expressly refers to the act, and the defendant engages to pay, in pursuance of its provisions. The defendant then agreed to pay $2100 for 21 shares of stock, at such times, and in such proportion, as the company might direct; under penalty of for feiture to said company, of said shares, and all previous payments, in case of default. • (§ 4.) The company did not sell, nor did the defendant acquire,-by this contract, absolute title to the stock. He could obtain that only by the payment of the purchase money. The sale was, in effect, conditional; with a right reserved to the vendor to reclaim the property upon nonpayment of any instalment of the purchase money. When such right is exercised, it is always a bar to any further claim against the vendee upon his contract. There is no case to the contrary. I say this because, after four arguments, no one has been discovered.

An attempt has been made to distinguish the case of Winter v. Livingston, (15 John. 54,) from the present, by the fact that the. contract of Winter was made voidable at his election, upon the non-payment of the notes of Livingston; while in this case the agreement, it is said, remains, and the forfeiture attaches to the stock and payments. This was the distinction that Winter went upon in the case cited. He did not repudiate the contract; on the contrary, he attempted to enforce it. But when he took back the subject of the sale, the court determined, as a matter of law, that he discharged the defendant from his obligation to pay. Would it have made any difference in the decision if the forfeiture had been limited to the estate, or interest, acquired by Livingston, instead of the agreement by means of which it was granted ? (6 Barn. & Cress. 519.) The result would be the same, either way. Winter would reinvest himself with the whole interest in the land, and Livingston would retain nothing, and for that reason, the court held, that he ought to pay nothing. Those who insist upon a distinction are bound to demonstrate that there can be a sale of lands, or chattels, or a subsisting agreement for a sale, obligatory upon the vendee, under which he neither has the pioperty itself, noi any claim to it. It is not an answer to say that the property in the stock passed to the defendant at the time of the subscription. It vested, subject to the right of forfeiture. Livingston, in like manner, took an equitable title in the lands sold to him, with the right of possession. But the contract in that case, and the law of the contract in this, preserved the right to the vendor to resume the subject of the sale, upon non-payment of the price; and if, by enforcing the right, one vendee was discharged the other should be.

We were told that upon leases containing a clause of forfeiture, and a right of re-entry for non-payment of rent, the rent accruing and due, previous to the re-entry, could be recovered. (6 Hill, 507, ana cases; 6 Bing. N. C. 178; 6 B. & Cress. 549.) This is true, and for the obvious reason, that the lessee had bargained for the use of the premises ; and for each -year, or quarter’s occupation, was to pay a fixed sum. He did occupy, and thus received, the entire consideration for the rent sought to be recovered, in the precise manner stipulated by the lessor. The re-entry annulled the lease, and all covenants of the lessee, founded upon the estate demised ; but it did not deprive the lessee of his past possession; that, he had purchased, and enjoyed, and should pay for. The cases are direct authority for the defendant; for they show that to the extent that the lessor resumed the thing granted, the lessee was discharged from his covenants. The defendant purchased stock, not the use of stock, nor the privilege of voting for directors. They were incident to the ownership. He bought a marketable commodity, the whole of which the plaintiffs have forfeited to their own use; and if the doctrine, established by these adjudications, is sound, they have thereby discharged him from all further obligation to pay the purchase money. It is immaterial whether the forfeiture is held to abrogate the sale, or is deemed a satisfaction of the debt, by the act of the creditor. The suit is barred on either supposition.

The forfeiture in this case, of the stock sold, to the use of the corporation, was then a discharge of all the debt for which the defendant was at the time liable. It discharged the whole debt or nothing. The forfeiture embraces the entire consideration of the defendant’s promise. (13 Ves. 434.) The directors cannot graduate it according to the amount of the call. The right is not divisible, but extends to the whole subject of the contract. The call is made a condition precedent to the forfeiture, the occasion upon which it may be enforced ; but when made, it applies to the “ sum subscribed,” and not to a particular instalment. (§ 4.) This follows necessarily from the principle, in which we all agree, that there is no legal mode of ascertaining the value of the stock. When the corporation, therefore, without legal process, in virtue of the defendant’s coniracrt, or the statute iir reference to which it was made, elected to appropriate this property to their own use, they must be deemed to have taken the stock of the defendant, for the whole debt, then unpaid, for which it was the sole consideration. This consequence results from the fact, that the proceeding was voluntarily adopted by the plaintiffs, in view of a distinct remedy by action, and that it was one which involved no liability to account, whatever might be the value of the property, or the consequences to the defendant.

It was. admitted that the forfeiture extinguished, at least, tne particular instalment, on account of which it was declared. But no authority, in or out of the act, has been shown, for this limitation. The idea is repudiated by the supreme court, and the application of such a principle would, in many cases, be palpably absurd. For example: th’e defendant paid ten per cent, in cash, at the time of his subscription. Suppose the directors had then called for the remaining ninety per cent, in various sums, the last of which was five per cent.; that they had waited till the time for the payment of the last instalment had expired, and then forfeited for its non-payment, specifically. This instalment, it is said, would be discharged, but the residue of the debt unaffected. The plaintiffs would then receive the ten per cent, in cash, and all the stock, to satisfy a five per cent, instalment, and the defendant would be still liable to a suit for eighty per cent, of the amount of his subscription. With such privileges corporations ought to flourish. It is substantially the course adopted by the plaintiffs in this case.

It was contended that the remedies by action and by forfeiture were cumulative. If by this, nothing more is understood than that the plaintiffs had the right to sue, or the right to forfeit at their election ; or that they might proceed to judgment upon the subscription, and "then forfeit the stock for the same delinquency; I have nothing to object. But the converse of this proposition, that they might exercise the right of forfeiture arid theyi maintain an action, or enforce a judgment, is denied. It presents the distinction between different remedies for the same demand, and a double satisfaction. A forfeiture, wnen made, is more than a means of obtaining satisfaction; it is itself a satisfaction. A remedy, if we choose to give it that name, which, when adopted, involves a satisfaction of the debt, is never concurrent. It is in its own nature exclusive. The argument that by the former law, a mortgagee could sue his bond, bring ejectment, and foreclose the mortgage, over.ookea the distinction to which I have adverted. The object of all those concurrent remedies was to obtain payment of the money due from the mortgagor. When that object was attained, the right farther to prosecute either was extinguished, with the demand to which it was incident. The illustration would have some application if the mortgagee, after obtaining possession by ejectment, could keep the land, as owner, and recover the debt also.

A majority of the court are of the opinion, for these reasons, among others, that the forfeiture extinguished all the rights, legal and equitable, of the defendant under the subscription to the stock, or the proceeds of the stock, therein mentioned; that the forfeiture was recognized by the contract; that its effect was rightfully to annul the relation of vendor and vendee, established by the agreement of the parties, and to discharge the defendant from all existing liability, founded upon that relation. That, consequently, no action can be maintained for the consider alien agreed to be paid for the stock, or any part of it; and that the defendant is entitled to judgment upon the demurrer.

Hoyt, J.

The supreme court of this state by a series ot decisions, commencing with the case of the Goshen Turnpike Company v. Hurtin, (9 John. 217,) has uniformly held that the mere provision in the charter of incorporated companies, similar to the one in this case allowing the forfeiture of the stock and previous payments, does not deprive the company of their common law remedy, by action to recover from the stockholder the amount of his subscription. (14 John. 238.) In this case they have gone further, and held that although the company exercised the right conferred by the statute and forfeited the stock, they may still recover in an action upon the subscription, unless the value of the stock was equal to the amount due upon the subscription. They liken this case to that of a mortgage, and say, that when the mortgagee takes the thing pledged' and sells it, or finally converts it to his own use, he is paid so- much only towards his debt, as the thing sold for, or was worth at the time of the conversion, and cite 5 Cowen, 380; 9 id. 346; 4 Wend. 381; 11 id. 106; and when the equity of redemption is released, or a strict foreclosure resorted to in any form, then so much is paid as the value of the thing mortgaged, at the time when the title became absolute in the- mortgagee, amounts to. This is no doubt the true rule in the case of a mortgage of real or personal estate, and if the company are to be deemed a mortgagee of the stock, and both parties entitled to the rights of mortgagor and mortgagee, I think it would be decisive in favor of the plaintiff.

But I do not think this is to be regarded in the light of a mortgage. Upon a foreclosure and sale of property mortgaged, if it bring more than the debt the mortgagor is entitled to the surplus. But no provision is made for the company’s refunding the surplus in this case. And if the company after forfeiture should sell the stock for a sum beyond the amount unpaid thereon at the time of forfeiture, the defendant could not recover such surplus. Again, in all cases of a mortgage, the mortgagor has in equity a right of redemption until a strict foreclosure, or a foreclosure and sale of the mortgaged property. But no such remedy exists for the redemption of stock forfeited under the provisions of a statute like the one in question. Judge Story (Eq. Juris. § 1325,) says that courts of equity in cases of noncompliance by stockholders, with the terms of payment of their instalments of stock at the times prescribed, by which a forfeiture of their shares is incurred under the by-laws of the institution, have refused to interfere, by granting relief against such forfeiture. And such was the ruling of the court of chancery in England, in Sparks v. The Liverpool Water Works Company. (13 Ves. 428.) When a penalty or forfeiture is imposed bv statute upon the doing or omission of a certain act, courts of equity will not interfere to mitigate the penalty or forfeiture incurred, for it would be in contravention of the direct expression of the legislative will. (Story’s Eq. Juris. § 1326; 1 Strange, 447.) 1 cannot see how this can upon principle be regarded as a mortgage. On the contrary, it has I think, more of the properties of a conditional sale, when the absolute title does not pass until payment in full.

Where a party subscribes for stock, he takes it upon, and subject, to the condition imposed by statute; that the corporation may, if he omits to pay the instalments as they are called for and become due, forfeit the stock and all previous payments. It is then left optional with the corporation whether they will prosecute on the subscription, or forfeit the stock and previous payments. The corporation may. doubtless take which ever remedy they elect. But if they elect to forfeit and take back their stock, it seems to me they should not be permitted also to sue and collect the price agreed to be paid, or any part thereof. In that case they take back the whole consideration for the subscriber’s promise, with the right to retain whatever may have been paid. It would, after that, be inequitable and unjust to permit them to retain the stock and still prosecute. And it can make no difference that the instalments for which the suit is brought became due before the forfeiture was declared. The statute simply authorizes a forfeiture of the stock and all previous payments made thereon; but does not declare that the party shall also forfeit the amount of payments which may have become due and remain unpaid.

On the argument of the cause in this court, it was claimed by the counsel for the plaintiffs, that their right to recover upon the subscription, notwithstanding the forfeiture, was like that oí a landlord taking possession of demised premises for the nonpayment of rent; and it was urged that, although by such act the relation of landlord and tenant is determined, yet the right oi action for which the rent accrued is not taken away. (Hinsdale v. White, 6 Hill, 507.) But in that case, the tenant only contracts for the use of the demised premises for a particular term. He does not contract for the purchase of the property itself. The landlord therefore only takes back the unexpi'red term for which the premises were demised, and there is no reason why the tenant, who was in default, should not pay rent for the time he actually occupied the premises. But I am not aware that it has ever been held that the landlord, in such a case, could recover the rent agreed to be paid by the tenant for that portion of the term which remained after the re-entry ; nor that he could recover the difference between the amount agreed to be paid for the remainder of the term, and the actual value of the use of the premises during that time, if such value was less than the sum agreed to be paid therefor. But such a rule of damages must be adopted in that case, to make it analogous to the principles laid down by the supreme court, for a recovery in the case now under consideration.

I think, as I have before stated, that this case is more analogous to a contract for the purchase and sale of property, where the vendor reserves the right, on default of payment at the time stipulated, to rescind the sale or forfeit the contract and previous payments. Suppose a person agrees to sell personal property, one-third of the purchase money is paid down, and the purchaser agrees to pay the remainder by instalments, and if he fails tc make either of the payments at the time stipulated, that he will forfeit the property purchased and all previous payments made thereon; and upon such default the vendor repossesses himsell of the property, and takes advantage of the forfeiture. It could hardly be pretended that he could still maintain an action for the price agreed to be paid. I do not see how such a case can be distinguished in principle from the one under consideration. I think the principles decided in Winter v. Livingston, (13 John. 54,) are equally applicable to this case.

If this view of the case is the correct one, the plaintiffs, by declaring a forfeiture of the stock, have in effect rescinded the contract, and taken back the consideration of the defendant’s promise, and their right further to prosecute is at an end: and it is of no moment whether the value of the stock was more oi less than the whole amount unpaid thereon. The fact that the plaintiffs had commenced their suit, and incurred costs prior tc the forfeiture, cannot aid them ; they were not bound to declare a forfeiture, but having done so, they must abide the consequences of their own act in that respect.

The judgment of the supreme court should be reversed, and the defendants should have judgment on the demurrer.

Ruggles, Cady, Strong and Shankland, JJ., concurred.

Jewett, C. J., and Beonsoe, J., dissented, and the former delivered his opinion as follows.

Jewett, C. J.

The principal question for decision in this case is, whether the company has a remedy against a delinquent subscriber for stock by an action of assumpsit upon his subscription to recover the amount of one or more calls or instalments, less than the full price of the stock, and at the same time a remedy to enforce satisfaction of a future call or instalment, by forfeiture of his stock in respect to that call, without affecting the claim of the company in- respect to such prior calls or its remedy for the recovery thereof by action.

It seems to be well settled, and it was not controverted on the argument, that an action of assumpsit lies by the company against a deliquent subscriber upon an express promise to pay the calls upon stock from time to time as they shall be required by the proper authority; although the act of incorporation contains a provision for the sale of the stock to satisfy the calls or for the forfeiture thereof in case of non- payment; (The Onion Turnpike Co. v. Jenkins, 1 Caines' Rep. 301; 1 Caines' Cas. in Error, 95 S. C.; The Goshen Turnpike Co. v. Hurlin, 9 John, 217; Dutchess Cotton Manufacturing Co. v. Davis, 14 id. 238; Highland Turnpike Co. v. McKean, 11 id. 98; Spear v. Crawford, 14 Wend. 20; Harlœm Canal Co. v. Seixas, 2 Hall, 504; The Worcester Turnpike v. Willard, 5 Mass. Rep. 80; The Delaware & Schuylkill Canal Co. v. Sansom, 1 Binney, 70; Justom v. Bridge Co. 2 Bibb, 577; Tai River Navigation Co. v. Neal, 3 Hawks, 520.) The su-. preme court of errors of Connecticut went a step further in the cases of The Hartford & New Haven Rail-Road Co. v. Kennedy, (12 Conn. Rep. 499;) The same v. Boorman, (12 id. 530,) where a corporation was created by the legislature, for the purpose of constructing a rail-road, with the general powers and privileges usually granted to corporations for a similar purpose, with a limited capital, to be divided into shares to be subscribed for by individuals, the directors of the company being by the act authorized to require payment of the sums so sut scribed to the capital stock, at such times and in such proportions, and upon such conditions as they might deem fit; and in case any stockholder should refuse or neglect to make payment pursuant to the requisition of the board of directors, declaring that the stock of such stockholder or so much thereof as should be necessary might be sold by the directors at public auction, after a lapse of six months from the time the payment became due, and providing for the application of the avails of such sales to the payments due and interest thereon and expenses of sale, and the surplus to the stockholder. And the defendant signed a subscription in these words : “ We do hereby subscribe to the stock of said railroad the number of shares annexed to our names respectively, on the" terms, conditions and limitations mentioned in the charter,” paying at the same time five dollars on each share subscribed. In an action of assumpsit brought by the company against a stockholder, to recover certain instalments, required by the directors to be paid, which he had refused or neglected to pay, it was held, 1st. That from the relation of stockholder and company, thus created, a promise by the defendant was implied to pay the instalments in question. 2d. That the remedy provided by the clause authorizing a sale of the stock of delinquent stockholders, was cumulative merely', leaving such promise in full force.

In behalf of the defendant it is insisted that although the company has at the common law a remedy by action of as-sumpsit against him to recover the price of the stock for which he subscribed, upon his express promise to pay; and a cumulative remedy provided by the act of incorporation, by forfeiting his stock; yet that the company cannot have both. That either when taken covers the whole subject of litigation and necessarily precludes a resort to the other. The general rule is well established, that where a remedy is given by statute in a case where a remedy also exists at common law, the party may take one or the other at his election, and cannot take both (Clark v. Brown, 18 Wend. 220, and the cases there cited.) Although where two or more remedies by law exist, in ,a given case resulting from the contract of the parties, each may be pursued at the same time until satisfaction. No question was made on the argument, but that it was competent for the corporation on the one side and the defendant on the other, to make the contract set out in the pleadings. Whether the compan) has a right of action by the common law against the defendant to recover one or more of the several proportions of the whole price of the stock subscribed by him, as called for and demanded by the directors of the company of the defendant, he being a stockholder, and also a right at the same time to resort to the statute remedy, by forfeiture of his stock to satisfy other proportions of such price so called for and demanded, subsequently, depends, as it seems to me, upon the true construction of the contract made by the parties and the provisions of the act of incorporation. .

As I read the contract, the defendant engaged to purchase and did purchase of the company twenty-one shares of its capital stock at the price of SI00 per share, and in consideration thereof agreed with the company to pay that sum, in such proportions or instalments, at such times as should thereafter be required by the directors of the company or their successors, pursuant to the provisions of the act of incorporation, and agreeing that in case of non-payment of any one or more proportions or instalments^ thereof as required, the company, in addition to the legal remedy by action upon the contract to enforce pay-' ment, should have the right and power by a resolution of its directors after thirty days’ notice of such requirement, given as prescribed by said act, to cut off all the right and interest which the defendant had acquired in the stock thus purchased and all previous payments by him made thereon, and forfeit it to the said company.

The obligation of the defendant to pay, as well as the right of the company to an action against the defendant to recover any part of the sum subscribed, or to forfeit his stock, was by the contract and the provisions of the charter contingent, depending upon the events of being required by the directors to pay and the non-payment by the defendant on or before the day appointed by the directors for payment, when the right to an action or forfeiture became absolute in the company on the happening of such events. The company in respect to such proportions of the principal sum as were so required to be paid, had an election of remedies, to obtain satisfaction of such proportions irrespective of the residue of the entire sum subscribed namely: By suit upon the contract or by forfeiture of the defendant’s chares of stock subscribed. It could not have both remedies in respect to a single call or instalment required. Pursuing one necessarily excluded the right to the other, so far and no farther than the call or instalment was the object of the particular proceeding. In regard to any future call both remedies on non-payment would be unaffected in regard to that by a previous action brought by the company to enforce payment of a previous call.

It .may be admitted that when the company has taken and perfected its remedy, by forfeiture of the stock of a stockholder, for non payment of a particular call or instalment, an end is put to all personal liability or obligation on the part of such stockholder, to pay any other proportion of the principal sum which should subsequently be attempted to be required by the directors. As by such forfeiture the relation of stockholder ir, the company would, from the time of forfeiture, have ceased, and consequently the company, by its own voluntary act, would have deprived itself of the power to make a call for further proportions of the principal sum, so as to affect such person or operate upon his contract: for to affect him or his contract, it is indispensable that such person should be a stockholder at the. time when the directors make the call or demand, or at least should not have been deprived of his stock bj forfeiture to the company; as otherwise there could be no breach of his contract by non-payment. But although the forfeiture terminated the relation of the defendant as a stockholder, and incapacitated the company to affect the defendant or his contract by any subsequent calls made by the directors, in case the whole sum had not been previously called or demanded; yet it did not in the least affect the then existing rights of the company, or the obligations of me defendant arising upon his contract with the company. We have seen that the defendant agreed to pay the price of his stock, at such times and in such proportions as the same should be called for and demanded of the stockholders by the directors. The several sums for which this suit was brought to recover, had been called fqr and demanded of the defendant while he was a stockholder, by the directors, in conformity to the power given to them by the act; and the times appointed for the payment had elapsed and payment neglected or withheld ; therefore a breach of the contract on the part of the defendant had occurred, and this suit for that cause had been commenced. At that time the company clearly, and that is conceded by the plea, had a right, at its election, to forfeit the defendant’s stock for that cause,'or to take its remedy by action for the recovery of said sums. If, then, the right of action in the company was perfect at that time, in respect to the several calls payable on and prior to the first of December, 1834, by what means has that right since been extinguished ? The argument is, that the right of the company, as it respects the remedy as well as the obligation of the defendant to pay, is entire not divisible; and when the company has taken effectually, one of the two remedies, by action or forfeiture, although confessedly to satisfy a particular call or instalment, of several made, it operates as a bar to any further remedy for the recovery or satisfaction of any other call, although such call is prior in time to the taking of such remedy, and was not the object sought or acquired by the remedy pursued. It is insisted that the legislature intended to give the company its election, to compel the performance of the contract to take and pay for the stock, by suit, or by forfeiture to rescind the contract, and upon rescission to keep that which had already been paid, by way of penalty for the subscriber’s delinquency. I cannot assent to that as the correct construction of the statute, and the rights and obligations of the parties under it. I do not see that a rescission of the contract was contemplated, by the legislature, in the event of a forfeiture. The power to forfeit the shares ot stock of delinquent stockholders, obviously was conferred, as a remedy, additional to an action at law, to insure prompt payment of the calls or instalments, designed to operate as an incentive to the stockholder to make payments, and at the same time afford additional facilities to the company to obtain the funds required to effect the object of the incorporation. In my judgment the right of action or forfeiture, as well as the obligation of the defendant to pay, are .divisible, corresponding to the several calls or demands made by the directors. And that it was competent for the company to exact the forfeiture of the defendant’s stock for the non-payment of any one or more of such calls, and having done that, the only consequence affecting the rights of the company, at most is a satisfaction of the particular call or calls for the non-payment of which such forfeiture was declared, and a termination of the relation of the defendant as a stockholder in the company, without in the least affecting the right of action which was perfect in the company to recover of the defendant for any calls or instalments previously made, and which had become payable as well by the terms of the contract as the provisions of the statute.

I do not see any analogy between the effect of a forfeiture as to the rights of the parties, contemplated by this statute, and the rights of the mortgagor under a foreclosure, having a right of redemption in equity. I am of opinion that the act of forfeiture under this statute, vested the stock forfeited absolutely in the company. The case here is, in some respects, analogous in principle to an entry by a lessor for condition broken, where it was said it had the effect to extinguish a covenant to pay rent and the like. But it was adjudged in Hartshorn v. Watson, (4 Bingham’s N. C. 178,) that an action of covenant lies for rent reserved by indenture, and accruing before a re-entry for a forfeiture, notwithstanding the lessor under such re-entry was to have the premises again “ as if the indenture had never been made,” and that the proper construction of the condition was, that from the time of re-entry the lessor should have the land as if the indenture had not been made. And that it would be a singular construction, to hold that to an action for rent on an instrument under seal, the lessee or assignee might plead, not payment, but that the lessor entered for non-payment—in other words, might deprive the lessor of his rent because he declined to submit to any further loss. No doubt such re-entry would, at the common law, work a discharge of the rent from the time it took place. In the case of Hinsdale v. White, (6 Hill, 507,) the same principle was sustained. There a lessee had been re> moved from demised premises for non-payment of rent by summary proceedings under 2 R. S. 512, § 28. It was held that the landlord, notwithstanding, might recover the same rent by act:on, and that the provision in 2 R. S. 515, § 43, Whenever a wairant shall be issued as aforesaid, by any such magistrate, for the removal of any tenant from any demised premises, the contract or agreement for the use of the premises, if any such exists, and the relation of landlord and tenant between the parties, shall be deemed to be cancelled and annulled,” did not operate in such case to annul the lease from its date, but only from the time of the default for which the warrant issued.

It was argued that the case of Winter v. Livingston, (13 John, 54,) could not be distinguished in principle from the case under consideration, and that it was opposed to the decision made by the supreme court in this case. In that case, Wintei contracted to convey certain lands to Livingston, for which Livingston gave three promissory notes to Winter. The contract between the parties provided that if the notes, or either of them, should not be paid at the time they became payable, it should be void and of no effect. The notes were not paid; and Winter then sold and conveyed a large part of the land to other persons, and afterwards brought his suit upon the notes. The court said, 11 The notes in question were given as the consideration for the reconveyance of the land by Winter to Livingston, according to the covenant entered into between them. By this covenant, however, it was provided, that the agreement was to be void, unless Livingston paid his notes as they fell due. He did not pay them, and of course the agreement was void, if Winter elected so to consider it. And the case fully shows that he availed himself of this forfeiture, for he went on and sold the land for his exclusive benefit, and Livingston has, therefore, received nothing for his notes; and Winter has a perfect title to the land.”

I think it is a mistake to say, as has been said, that the land in the case cited was sold by Winter, as the shares of the defendant were, by the corporation. In the case of the land, there was an executor)7 agreement on both sides for the sale and purchase of it, containing an express provision, that in case the purchaser omitted, to pay the consideration agreed upon, the contract should be void and of no effect, in other words, rescinded. In the case under consideration, the contract was executed on the part of the corporation, the stock sold had been issued and delivered to the- purchaser, and nothing l'emained to be done by the corporation to carry the contract into full effect. The title to the shares of stock became vested in the defendant, and the corporation became entitled to secure or collect the price which he contracted to pay therefor. There is no provision in the contract between the parties in this case, that in the event of non-payment of the price, at the time and in the proportions it should be called for, that the contract of sale and purchase should be void. Neither could the corporation rescind the contract so as to entitle itself to the stock, on non-payment, by the defendant, there being no fraud alleged in the making of it. In the event of non-payment, the corporation could only pursue such remedies as the statute and common law gave it, to enforce payment or satisfaction of the debt due from the defendant ; and although the statute, in connection with the contract, in addition to the ordinary remedy by action, gave a summary method in case of default in payment, by which the corporation was enabled to satisfy, in part or in the whole, its debt, by acquiring the title to the defendant’s stock; and although the 'corporation pursued such remedy, and satisfied a portion of the debt due from the defendant, .consequent upon the non-payment of the price at the time and in the manner provided for, as well by the contract as the statute ; and though it acquired the title to the stock; the corporation did not acquire the title by avoiding or rescinding the contract, but in its affirmance and by means of the legal remedy provided to enforce its performance on the part of the defendant.

In the case of Winter v. Livingston, the consideration of the notes being the consideration agreed to be paid for the land, failed when the event happened which, by the terms of the contract, was to put an end to it, and the vendor had otherwise disposed of the subject of the bargain. It has been said that the statute, in this case, makes the contract void, at the election of the corporation, on non-payment by the defendant, and that is inferred from the power given to forfeit the stock for such cause: and it was also said, that it is the same right given by the statute as was provided for b}' the contract between Wintei and Livingston. I am not able to see the resemblance. The statute in no sense provides for making the contract between the corporation and a stockholder void, on non-payment of the price. The power to forfeit the stock for non-payment, given by the statute, is in no sense a power to rescind the contract, or to declare it void—but a power to take a proceeding under it in its affirmance, to enforce it. I think it is a mistake to say, that in the case of Winter v. Livingston, because the vendor had repossessed himself of the land as owner, it was held that the consideration for the notes had failed. The ground upon which the decision in that case was placed, was, that the contract was void by its terms, at the election of Winter, on the non-payment of the notes by Livingston as they fell due. And the fact that the notes were not paid, and that Winter subsequently sold the land for his own benefit, was taken as evidence of his election so to consider it, and consequently the consideration for which the notes were made had failed.

Here, as I have already said, there has been no failure of consideration ; no other consequence from non-payment has resulted than might have followed a sale of the shares on execution upon a judgment in favor of the corporation, against the defendant, for the price of the stock, and the corporation had been the purchaser at $10 per share, if the statute had provided such remedy instead of the remedy by forfeiture. I confess that I do not see any analogy in principle between this case and the case of Winter v. Livingston.

In my opinion, the judgment of the court below should be affirmed.

And thereupon the judgment of the supreme court was reversed, and judgment awarded to the plaintiff in error, on the demurrer. 
      
       The point decided in this cause seems never to have heen in terms before decided. An incorporated company reserves the right of forfeiture of all payments made and stock subscribed, if the subscriber fails to make payment upon the calls made by the directors. This is secured to them by the act of incorporation, and the subscription is made subject to it. After making the last call, the directors pass a resolution forfeiting defendant’s stock for non-payment of that call. This is pleaded in har to an action of assumpsit previously brought to recover the calls remaining unpaid. It is not denied that the right toforfeit would be perfectly consistent With the right to prosecute this suit. But the actual forfeiture deprives the defendant of the consideration for which his subscription was made, and bars the action. The majority of the Court decide that it comes within the principle of Winter v. Livingston, 13 Johns. 54. The right of forfeiture is held to be indivisible, extending to the whole subject of the contract. On this point the members of the court were divided. The minority hold that the right was divisible, and the forfeiture might be exacted for non-payment of any one or more of such calls, and that the effect, at most, would be but a satisfaction of the particular call for the non-payment of which the forfeiture was declared. An attempt seems to have been made to consider this right as in the nature of a mortgage, but some very clever distinctions are taken, going to show that it cannot he rightly so considered. For a review of this case, see Dexter and Mason Plank-road Co. v. Millerd, 3 Mich. 102.
     