Banet v. the Alton & Sangamon R.R. Co..

• Decision Date: 31 December 1851
• Citation: 13 Ill. 504,1851 WL 4378,3 Peck 504
• Court: Illinois Supreme Court
• Parties: JAMES A. BANETv.THE ALTON & SANGAMON RAILROAD COMPANY.

13 Ill. 504
1851 WL 4378 (Ill.)
3 Peck (IL) 504

JAMES A. BANET
v.
THE ALTON & SANGAMON RAILROAD COMPANY.

Supreme Court of Illinois.

December Term, 1851.

THE appellees bring suit to recover of the appellant a certain amount of the appellant's subscription for the stock of the appellees, and file their declaration, setting out that six persons therein named, and their associates, successors and assigns, were created a body corporate and politic, under the name and style of the Alton & Sangamon Railroad Company; that the plaintiffs were and are the said body corporate and politic, and that on the

[13 Ill. 505]

____ day of ____, A. D. 1849, at the county of Sangamon, a subscription book was opened, in pursuance of the charter, which book contained an article in writing in the words and figures following, to wit:

“We, the subscribers to the capital stock of the Alton & Sangamon Railroad Company, each one for himself, in consideration of receiving certificates for shares of the stock of said company, from Simeon Ryder, the president of the board of commissioners, authorized to open the books for subscription to said stock, upon which we have paid $5 on each share, which number of shares have been hereinafter subscribed by each of us, do hereby agree, in consideration of having received such certificates for shares of stock, and in consideration of being one of said stockholders by subscribing therefor, to pay the balance of the instalments due on stock by us subscribed, when the same may be called for by the board of directors of said company, when duly organized in conformity with the charter approved February 27, 1847.” And that on the terms and conditions of said article, in writing, the defendant subscribed in said book for thirty shares of said stock, and there and then paid $5 on each share so subscribed for, and there and then received a certificate, as in said article mentioned. That on the _____ day of _____, A. D. 18--, said body corporate and politic became and was duly organized in pursuance of said act, and afterwards, and before bringing suit, the defendant was required and notified by the directors of said company to pay to said company for three instalments on his subscription for stock the sums and at the time following, that is to say, $150 on the 28th day of June, 1850; $150 on the 24th day of August, 1850; $150 on the 24th day of September, 1850; $300 on the 24th day of October, 1850; $300 on the 10th day of December, 1850, and $300 on the 11th day of February, 1851, by means whereof the defendant became liable to pay to the said plaintiffs the several sums of money aforesaid, and being so liable, promised, etc.

And the declaration further counts on the promise in writing aforesaid of the said defendant, averring an organization in conformity with the charter of said company, and that on the

[13 Ill. 506]

_____ day of _____, 1852, certain instalments due on said stock of said defendant had been called for by the board of directors of said company, amounting to the sum of $13.50, of which defendant had due notice, by means whereof defendant became liable, promised, etc.

And the declaration further counts on the indebtedness of said defendant for divers calls on the thirty shares subscribed for by said defendant, said calls being duly made by the board of directors, and being so indebted the said defendant promised, etc.

The defendant filed his pleas, non assumpsit, and no such corporation.

Replication and trial by the court. Exemplified copy of charter in evidence.

A judgment was rendered pro forma by DAVIS, judge, at the November term, 1851, of the Sangamon circuit court, for $1,351, and Banet appealed.

S. T. LOGAN and E. B. HERNDON, for appellant.

A. LINCOLN, for the appellee.

TREAT, C. J.

On the 27th of February, 1847, the legislature passed “An act to construct a railroad from Alton, in Madison county, to Springfield, in Sangamon county.” The first section provides “that Robert Ferguson, Simeon Rider, Benjamin Godfrey, Thomas Clifford, Robert Dunlap and William Martin, and their associates, successors and assigns, are hereby created a body corporate and politic, under the name and style of ‘The Alton & Sangamon Railroad Company,’ for the term of thirty years, and by that name be, and they are hereby, made capable in law and in equity to sue and be sued, plead and be impleaded, defend and be defended, in any court of...