The daily gazette., 1875-06-05

statement, be shown not only to b.
Id!se, out TO haze been knovn TO hao
oeen talse6y the party making it an,
that the other party was thereby in
: duced to enter into the contract, Th,
representation in this case was a cola
teraI statement not embodied in tht
contract, but extrinsic TO it and Il
seems to mo that the rule which
have just stated applies with peculiar
significance and force the case now be-
iore you and upon Which you are now
verdict,
Crhe court here cited u list of authori.
tieS 10 support of their position.)
Inc question Is whether Mr.. Fenni.
more at the time he made the state.
ment knew 1t to be untrue, and made
IL with fraudulent intent TO mislead
ana deceive The defendant; IL he did,
then your verdict should be for the de-
ienaant, but II he believed at the time
that the statement he made was true.
or hid not know 1t to be false and did
not make 1t fraudulently or with the
intention or design of misleading or
deceiving the defendant and thus to
induce him to enter into the contract
OF subscription, thea your verdict un.
der the plea Of fraud and cover "
should be in favor of the plaintiff.
In regard to the plea of limitation.
~ Is proper l should say to you that as
the contract Ia in the writing under
tho hand of the defendant the claim Ia
not barred until after tho expiration of
SIX years from the time of the accruipp
OF the cause of action.
1t has been insisted by the learned
counsel for the defendant that tbescon.
tract OF subscription Ia in point Of law
analogous to and. In effect the same as
III cases OF promissory notes payable
on domand that Is to say, he Insists
that the bar Of the statute began to
run from the date or day of the sub.
scriptlon, and II six years elapsed he.
tween that day and the day on which
the action was Instituted the plaintiff
must fail to recover by reason of the
bar of the Statute,
NOW We cannot agree with tho view
which the counsel has presented In
this case, in this regard, nor with the
conclusion to which h @ has arrived.
NOW, gentlemen, the contract of sub.
sctiption in this case Is not like note
payable on demand.
For you must remember that Tho
Company was not yet organized and
that there was as yet no person legally
althorized to receive the money
Moreover il yon will recall the terms
OF the charter you will ut once discover
that the company had no power or
authority granted it to require fmme.
d'dte payment Of the subscription, The
nrst section of their charter prescribes
In express terms the form of the con-
tract of subscription.
The subscribers to the stock contract.
cd to pay for the same, "iu such man.
neT aud proportion and at such times as
shall be deterSatned Gy the President and
directors of the company"
ASaln the 9Th section of tho charter
prescrlbes that upon. every such sub.
scriPtlon there shall be paid to such
pels or persons appointed to receive
such subscriptions such sastalments
as the President and Directors Of the |
k9llroad Company shall require; pro.
gtdea that no payment shall be deman.
ded until! at least THIRTY days public no.
tlce shall have been given In ut least |
one newspaper In tho County.in which
said payments shall be demanded"
so that you perceive that the amount
OF subscriptions was not immediately
due or payable, but that credit was
given until the instalmants were called
for, from time to time by the President
aud Directors, and then not until thIr. !
ty days after the call shall have been
published as required according to the
terms of the charter.
We therefore Instruct you that the
bar of the act of limitations did not
begin to run until utter the time when
the several instalmcnts became pay
iblc according 10 tho terms of the
published notices which are in evidence
before you.
Now il you are satisfied by the evi.
lence that tho several instalmentJ
we're made payable at the several times
In tho published notices of
he calls, then VIC say to you that the
,laim of the plaintiff is not barred by
he act OF Limitations, because tho ao-
ion in this case was instituted within
TX years after the accruing of the cause
IL action.
Ana moreover, we remark to you
that II you are satisfied
hat If the first lnstalnent of $125 was
,aid by the defendant on the 18th of
Day, 1S67, then we say to you that
payment took the ease out of the oper.
.tion of the act of limitations and the
'laintiR would have six years from ,
he 18th OF May 1857 within which to
ring his action for the recovery of
he amount remaining unpaid on the /
contract of subscription, namely the
nd call made payable August 10, 1867,
he Bird call made payable May 10 1868 .
he 4th call made payableSept. /, 1868,
he 9th made payable Sept. /, 1869.
|ult was brought May 10, 1873. 80
hat none OF these instalp ents are
'arred, six years not having elapsed :
'efore suit instituted.
We have been requested to instruct :
-ou that the act of the Legislature of !
he 10th of March, 1865, imposed the j
uty upon the Kent county 4. II. Co., 4
D extend the road to the Delaware rail r
DAD and that as they have not done
o, the subscriptions under the Mary.
4 nd n, rf