10 Mass. 384 (Mass. 1813), Middlesex Turnpike Corporation v. Swan

Citation:10 Mass. 384
Opinion Judge:Sewall, J.
Party Name:The Middlesex Turnpike Corporation v. Samuel Swan
Attorney:Peabody for the plaintiffs. Bigelow for the defendant.
Court:Supreme Judicial Court of Massachusetts
 
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Page 384

10 Mass. 384 (Mass. 1813)

The Middlesex Turnpike Corporation

v.

Samuel Swan

Supreme Court of Massachusetts, Middlesex

November, 1813

Page 385

         This action was assumpsit, to recover the amount of assessments upon six shares in the stock of the said corporation, at the rate of 240 dollars on the share.

         Trial was had on the general issue, before Parker, J., at the sittings after the last November term in this county, and a verdict for the plaintiff was returned, subject to the opinion of the Court upon the following facts reported by the judge, as proved or admitted at the trial.

         The corporation was created by statute of 1805, c. 12, by the provisions of which statute one branch of the turnpike was to pass from a certain point in Bedford to and through the town of Medford; and another branch from the said point to the rocks, so called, in Cambridge. On the 25th of July, 1805, the defendant subscribed a memorandum of the following tenor: --

         "The estimate of the whole expense of making the Middlesex turnpike is 40,000 dollars; and it is proposed that there be 400 shares. We, the subscribers, hereby engage to take the shares set to our respective names, and to pay all assessments which may be laid thereon, conformable to the orders of the corporation;" and to the defendant's name he set six shares. There were afterwards duly assessed on each share, by two assessments, the sum of 240 dollars, of which the defendant had due notice, and refused to pay them to the corporation.

         The defendant was, during several years, chosen and acted as a director, treasurer, and clerk, and particularly in the year 1808 was chosen and acted as director and treasurer. As one of the directors, he subscribed a petition to the legislature, praying for an alteration in the said turnpike road, which alteration was established by the statute of 1807, c. 7, and the road made comformably thereto. This last act passed on the application of the directors of the corporation, of which the defendant was one, and with the consent of the corporation, before either of the assessments were made, but after the defendant had subscribed the said agreement. The said turnpike road has been altered, pursuant to said statute; and in the year 1811, another act passed in addition to the act of incorporation.

         The defendant lives in the town of Medford, and that branch of the turnpike which was to lead to Medford has not yet been made, nor any sum of money expended on that route. The defendant supposed that, by the terms of the subscription, he could in no event be personally chargeable with more than 100 dollars on each share; and it was insisted, on his part, at the trial, that he was exonerated from his subscription, so far as it concerned his personal responsibility, on the ground that the turnpike had been located differently from the plan under which he subscribed, as established by the act of incorporation. It was also contended, on his part, that he was exonerated on the ground that nothing had been expended on the Medford branch of the turnpike.

         But the plaintiffs contended that his acceptance of the offices of director, treasurer, and clerk, and serving in the same, and especially his signing the petition to the legislature for the alteration which was made, operated...

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