
    
      The Vestry and Wardens of Christ Church, Wiltown, vs. executors of F. Y. Simons.
    
    An. action may be maintained by a corporation against an original subscriber, on a promise made before the Act of incorporation, if it be shewn that he recognised it as binding after the incorporation.
    There was an association of gentlemen, of whom C D was one, to build a church. C D became owner of one of the pews, and at a meeting of the association, a resolution, seconded by C D, was adopted, by which the pews were assessed at certain sums. Some months after the resolution was adopted the association was incorporated. For several years • C D paid the assessments on his pew, and then died. After his death, his executors refused to pay some of the assessments. Held, that C D, by his acts, had recognised the resolution as one of the by-laws of the corporation, and, therefore, that he was bound to pay the assessments.
    The question reserved whether the executors were liable for assessments which accrued after the death of C D.
    
      Before Evans, J. at Charleston, Fall Term, 1845.
    This was a sum. pro. to recover assessments on a pew in Christ Church, Wiltown, for the years 1842, 1844 and 1845. No assessment was claimed for the year 1843.
    It appeared from the evidence, that in the year 1836, or before, there was an association of gentlemen, living at or near Wiltown, to build an Episcopal church, of which Dr. P. Y. Simons was one. When, the church was finished, or perhaps before, the pews were sold, and Dr. Simons was the purchaser of one of them, and gave his bond, which had been paid since his death by the defendants. In May, 1836, there was a meeting of the association, at which, by resolution of the vestry and wardens, moved by H. P. Faber, and seconded by Dr. Simons, it was agreed to assess the pews to raise a salary for the rector. Dr. Simons’ pew was of the class assessed at twenty dollars per annum. In the following December, the association was incorporated by the style above stated. Dr. Simons died in 1838. Sometimes there was no minister, and when this was the case no assessments were called for. All the assessments called for in the lifetime of Dr. Simons were paid, and some of the assessments which accrued after his death were also paid. For some few years before this action was brought, the family having removed, the assessments were not paid, and this action was to recover the assessments unpaid. It was contended for the plaintiffs, that the resolution to assess the pews, at a certain annual sum, was an agreement to pay according to the resolution, and was, therefore, a promise binding on Dr. Simons, and descended to his executors. Without undertaking to decide whether such a resolution was binding, as a perpetual contract, or not, his Honer decided ' against the plaintiffs, on the ground that the assessments were claimed in virtue of a resolve or by-law, made anterior to the Act of incorporation, which recognizes as valid and binding no act of the association but the election of officers.
    The plaintiffs appealed, and now moved for a new trial.
    
      Blanding, for the motion.
    
      Yeadon, contra.
   Curia, per O’Neall, J.

In general a corporation cannot sustain an action against an original subscriber, when, at the time of the promise, the corporation had not an existence, without shewing at least some clear indict tion of concurrence in the party to be affected by it with the corporate acts and proceedingsAng. & A. on Corp. (2 ed.) 414. As it is said, at page 412 of the same book, this concurrence may be shewn by attending and voting at the corporate meetings. Here the concurrence'of the defendants’ testator is shewn by acts a great deal less equivocal. He seconded the original resolution for assessment ; bought one of the pews; and after the Act of incorporation, paid the assessments as long as he lived. This was a plain recognition, on his part, as one of the cor-porators, of the resolution adopted before the incorporation, and made it, as against him, a valid by-law of the corporation.

Whether the assessments can be enforced after his death, it is not now necessary to decide. That question must first receive the adjudication of the circuit court. The motion to set aside the non-suit is granted.

Richardson, Butler, Wardlaw and Frost, JJ. concurred.  