Tomlin v. Tonica & Petersburg Railroad

Caton, C. J. Several of the errors in this case are well' assigned, but not all. The eleventh and twelfth pleas were bad, and the demurrer properly sustained to them. It was insisted that this demurrer should have been carried back to the declaration, and sustained to the first count, because it is supposed that that count is insufficient. The pleas professed to answer the whole declaration, and the demurrer to them-could not be sustained to the declaration if either of the counts were good. The third count was, beyond doubt, good, and hence the demurrer could not be sustained to the declaration. We think that the first count of the declaration was bad, and that the court erred in admitting the contract of subscription in evidence under it. The fifth section of the charter authorizes the board of directors to provide, by by-laws, for the construction of the road by divisions, “ and in such case it may be lawful for the subscription of stock to be taken and subscribed for either of said divisions or for the whole of said road, as those taking and subscribing for the same may think proper.” Now, this count describes the contract sued on as a general subscription, and not a subscription to any particular division. Nor indeed does the count show that the road had ever been divided into separate divisions by by-law of the board of directors. The call which, in this count, is averred, to have been made, was, “ that the subscribers to the capital stock to the third division ” should pay on the first day of October, etc. This call was not on the subscription set out in the count, and offered in evidence on the trial, and was not such as to render the defendant liable to pay that subscription. The count itself was bad, and the court erred in admitting the contract of subscription in evidence under it. The fifteenth section of the charter makes the certificate of the secretary “ evidence of the regular organization of said company under its charter, and of any act or order of the board of directors of said company.” Under this law, we think the certificate of the secretary of the fact of organization sufficient proof of such fact, for the charter authorized him to certify to such fact; but in all other cases, his certificate, to be evidence, must be confined to acts or orders of the board of directors. His certificate of the fact that a call was made by order of the board of directors, is not made evidence of that fact, but he must give a copy of the order of the board of directors, and let the court judge whether it constituted a sufficient call. His first certificate does give a copy of the order passed by the board, calling for payment of the subscriptions to the third division of the road, and is sufficient evidence of such call; but as the action was on a general subscription, and not on a subscription to the third division, it was irrelevant, and did not tend to support the action. This certificate also states the fact that notice of the call was published as required by the eleventh section of the charter. The publication could not be proved by the certificate of the secretary, but should have been proved by' competent legal evidence, the same as any other fact. The third certificate of the secretary is of the fact that a call was made for the payment of the general subscriptions to the road, but does not give a copy of the order of the board of directors making the call, and hence was improperly admitted as evidence of such call; and without competent and proper evidence of such call, no right of action accrued on the subscription. We will add, that we are inclined to think that the averments of notice in the first and second counts are insufficient. The averments are, after stating the passage of the orders making the calls, “ of which the said defendant then and there had notice.” The eleventh section of the charter positively requires notice of the calls to be published for thirty days in two newspapers published in the vicinity of the road. We are inclined to think that this notice required by the charter, could not be dispensed with by giving actual notice to the subscriber. The third or common count was undoubtedly good. The judgment must be reversed, and the cause remanded. Judgment reversed.