#### The President and Directors of the Bordentown and South-Amboy Turnpike Company *against*James H. Imlay.

THIS cause was carried down for trial to the Circuit Court of the county of *Burlington,*in *May*1818, and following state of the case there agreed upon for the deci- ” ° V sion of the Supreme Court, at bar. llie legislature oí *New-Jersey,*by an act passed the 16th day of *February*1817, entitled “ An act to incorporate a company to erect a turnpike from *Bordentown*to *South-Amboy,”*incorporated a company for the purpose in the said act, mentioned by the name, of “ The President and Directors of the *Borden-town*and *South-Amboy*turnpike company,” and in and by the said act, appointed *Samuel G. Wright, Richard L. Beatty,*and *William M’Knight,*to receive subscriptions .for erecting the said turnpike road. In pursuance of the said act, the said *Wright, Beatty*and *M’Knight,*proceeded to receive subscriptions for erecting the said turnpike road, *324and procured and opened a book and entered therein as to wit:—“We whose names are hereunto subscribed, do promise to pay to The President and Directors of the *Bordentovm*and *Boutli-Amhoy*turnpike company, of twen*ty-five dollars, for every share of stock in the said company set opposite to our respective names, su°h manner and proportions, and at such times as shall be determined by the President and Directors, in pursuance of an act of the council and general assembly of the state of *New-Jersey,*entitled an act to incorporate a company to erect a turnpike from *Bordentovm*to *Bouth-Arnboy,*passed *February*16th, 1816.” On the 14th day of *December*1816, divers persons having previously subscribed divers shares, the said defendant, subscribed his name to the writing above mentioned, entered in the said book as aforesaid, and did write and set opposite to his name, the number of fifty shares, and pursuant to the said act, paid to the commissioners authorized and appointed to receive subscriptions as aforesaid, the sum of two dollars on each of the said fifty shares, making the sum of 100 dollars.

*323Suit for subscription money. (a)

„ Bjght,t0 forfeit share

*324More than five hundred shareshaving been subscribed, the said persons appointed to receive subscriptions, did, pursuant to the said act, call a meeting of the subscribers and stockholders, by whom a President and seven Directors and Treasurer were chosen, agreeably to the said act, and some progress hath been made and considerable sums of money expended by said corporation towards the erection of the said turnpike road.

The residue of the said sum of 25 dollars on each share, remaining unpaid at the time of subscribing ; that is to say, the remaining sum of 23 dollars on each share of the said stock wras called for by the said President and Directors in different proportions and instalments, and at different times fixed and determined by the said President and Directors, of which public notice was legally given by advertisements; and payment thereof was also demanded by the plaintiffs from the defendant.

The defendant paid nothing on the said shares, other than the sum before mentioned, of two dollars on each share, paid at the time of subscribing. Upon the fore*325going state of facts, the following question was submitted to the Supreme Court at bar. Is the said *James II.*liable to pay the amount of his subscription as aforesaid, remaining unpaid, with interest thereon from the several times fixed and determined for the payment of the said *\ J*# instalments, as above mentioned ? or is he legally entitled to abandon the said shares; to refuse payment of the residue unpaid of his subscription ; and leave the said corporation to forfeit *his shares and the payment already made thereon? If the court shall be of opinion in favour of the plaintiffs, judgment is to be entered upon a *relicta verificatione*in their favour (of the plaintiff's) for the sum remaining unpaid, with interest, as may be directed by the said court, with costs of suit: if the court shall be of opinion in favour of the defendant, judgment, as in case of nonsuit, with costs, to be entered.

Mr. *Ewing,*on behalf of the plaintiff,

maintained that no power, being *expressly*given in the law, either for the individual or the company to forfeit the shares subscribed, and on which part of the money had been paid, there was no remedy left for the company but to sue for the balance remaining unpaid. He referred to 1 *Bin.*70. 1 *Caines*381. 14 *John.*278. 5 *Mass.*80.

No answer was made, and

(a)

 See *Brannin vs. Mercer Ins. Co. 4 Dutch. 92. Perdicaris ads. Trenton City Bridge, 5 Dutch. 367. Crane ads. library Association, 5 Dutch. 302. N. J. Midland Railway Co.*vs. *Strait, 6 Vr. 322.*

By the Court.

Let judgment be entered for the plaintiff for the balance remaining unpaid, with interest upon the several installments, from the times they respectively became due, and were directed by the president and directors to be paid.