#### The Harlæm Canal Company *versus*Joseph C. Spear.

The declaration in this case, was exactly like that in the preceding case against Seixas. The fifth count was a *general*one, stating that the defendant was indebted to the plaintiffs in the sum of 1600 dollars, “ for moneys due, payable, and owing,” from the defendant to the plaintiffs, “ for and respect of divers, to wit, sixteen shares of the capital stock of the Harlaem Canal Co., of which the “ defendant was proprietor,” “ by virtue of divers calls made by the directors of said company,” for the same.

To the first, second and fifth counts, the defendant demurred specially, and pleaded the general issue to the third and fourth. The third count was substantially like the second, but more spe*511eific in its averments, and the fourth was a general one, for sixteen shares of stock *sold and delivered*to the defendant. The causes of demurrer assigned to the first count, were, 1. the want of consideration; *2.*that it did not appear from the count, what instrument, if any, the defendant subscribed, nor how, nor with whom he agreed to pay for the shares therein mentioned; 3. that there was no averment, that the work was ever commenced, nor does it appear, that the payment of the first instalment was requisite ; 4. It does not appear, that the contractors were ever in advance to the company, in expenditures for the objects mentioned, to the amount of 20,000 dollars, or any other sum; nor does it appear to whom the five instalments were to be paid. 5. No assumpsit or promise, is laid in the count, to pay the first instalment nor the subsequent ones *to the plaintiffs,*nor does it appear that any delivery or tender of a certificate of stock was ever made to the defendant, nor that he was in fact a stockholder. 6. It does not appear how, nor by whom the first instalment was called for, nor what notice the defendant had of such a call, nor that he was ever informed that a sufficient amount of stock had been subscribed for, to justify the commencement of the work.

To the *second*count it was objected, (in addition to the exceptions taken to the first count,) that in one part of the count it is alleged, that the defendant had promised to pay the first instalment to the *plaintiffs,*and in another part, that the same was to be paid to Post, Miller & Kent, as trustees, and that the defendant was required to pay the same to them accordingly.

To the fifth count it was objected, that it was defective for uncertainty, and that it did not show how, nor by virtue of what undertakihg the defendant was indebted to the plaintiffs; nor the amount or nominal value of a share of the stock, nor the defendant’s engagement in relation to the same. *2.*That it did not appear that the defendant had ever subscribed for such stock, nor how he became a proprietor thereof, nor how the money was due and payable, nor at what time, nor upon whom the calls for payment were made, nor the nature thereof, nor the time when the money demanded became due and payable under the calls.

*512The cause was argued by *Mr. J. Greenwood*for the defendant, and *Mr. Anthon*for the plaintiffs.

*Mr. Greenwood*contended,

that the three counts were bad, both upon general and special demurrer, and in support of the additional objection to the second count, he cited, [5 *Mass. R. p.*80, 1. *Chit. p.*299.] He also commented, at length, upon the points assumed by the causes of demurrer, and upon the cases cited for the plaintiffs.

*Mr. Anthon, contra,*

maintained his original propositions, and contended, that the *contract*being made with the *plaintiffs,*the payment was to be made to the trustees, as their agents merely, and that the action was well brought in the name of the company. In relation to the fifth count, he cited, 2 *Chit. Plead.*53.

*Per Curiam.*

The two first counts of the declaration in this case, are like those in the previous one against Seixas, and the demurrers to them must be overruled, for the reasons there given. The defendant has not made his objections stronger, by assigning special causes of demurrer ; for his exceptions, if valid, would go to the foundation of the action. They assume, that all the matters of duty charged upon the plaintiffs, are conditions precedent to their right of recovery, and that the declaration should contain averments of a performance of those conditions. We do not think so. As soon as a sufficient amount of stock was subscribéd, to justify the plaintiffs in the commencement of the work, the defendant became subject to the call for instalments, and having disobeyed that call, he is liable, in assumpsit, for their amount. The remedy given to the plaintiffs, is not confined to a forfeiture of the stock; it is cumulative, and the plaintiffs may resort to both remedies, if necessary.

As to the fifth count, the objections to it cannot be sustained. It avers, that the defendant being indebted to the plaintiffs in the sum of 1600 dollars, for moneys due and owing from him to the plaintiffs, forsixteen shares of the stock of that company, which were *513held by the defendant, in consideration thereof, promised to pay the same, when he should be afterwards requested. Here is, no doubt, a valid consideration set forth for the defendant’s promise. It arises from the indebtedness of the defendant, for the stock actually held by him. It was not necessary to set forth the *manner*in which he became the proprietor of the stock. If he owed the money to the plaintiffs and promised to pay it, he is, no doubt; liable. It will be the proper occasion, on the trial of the cause, to inquire, whether the count under consideration, must not be supported by proof of an actual promise. But upon demurrer, an actual promise, if necessary, may be inferred, for the purpose of supporting that laid in the declaration; and upon the trial, a promise alleged, in general terms, may be ^supported by proof of an express promise. The demurrer, therefore, must be overruled.

*Judgment for the plaintiffs on the demurrer, with leave to the defendants, &c.*

[J. L. Mason, *Att’y for the plffs.*J. Greenwood, *Att'y for the deft.]*