Reese v. The Bank of Montgomery County
| Decision Date | 17 May 1855 |
| Citation | 31 Pa. 78 |
| Parties | Reese <I>versus</I> The Bank of Montgomery County. |
| Court | Pennsylvania Supreme Court |
The law instituting this bank contemplates that it may, at its start, not have the whole of its capital stock subscribed; and the governor is authorized, on a certain portion of it being subscribed and paid, to issue the letters patent of incorporation in favor of the then subscribers, and of "all those who shall afterwards subscribe," so far as to make up the full capital. It was not at all the purpose of this provision to define the persons who should be entitled, after the issuing of the charter, to subscribe; but only to say that the corporate franchise should belong to the persons who might then be, and who thereafter should become stockholders.
Is the plaintiff entitled to a remedy for being excluded from subscribing for the new stock? We think he is. Since the acts of incorporation do not declare how the untaken stock shall be disposed of, it stood like all the other corporate franchises, and belonged to the corporators, and they had a right to all the profits that could be derived from it — the bank held the right in trust for its members. The directors might order it to be sold, and then the profits would be shared among the members at the next dividend; or they might allow each member to subscribe for his proportion of the new stock as nearly as it could be fixed in integral shares. This right is easily calculated, and it could not be given to one without being given to all; and to deprive the plaintiff of his share was a legal injury — a violation of his personal right, for which he is entitled to compensation.
Can he sue in assumpsit? We think he can; though there was no contract, expressed or intended, to give him his proportion. The violation of his right was a tort, but not simply a tort; for the corporation stood to him in a special...
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