doubted by the English courts whether the statute of limitations as to simple contracts applies to an action for calls, that being a liability imposed by statute, and so to be regarded as a specialty. 8. Bankruptcy is a good defence for calls made after the certificate of bankruptcy issues, but to meet liabilities incurred before.18 9. One of the commissioners appointed with five others at a given place to take subscriptions to a railway, has no right in doing so to give any assurance as to the line of location that would be adopted by the company. 19 10. And where the subscription is made upon condition of the road going in a particular route, the plaintiff may show that the defendant owned land upon that route. And any representations of the agents taking the subscriptions, as to the ultimate value of the stock, will be regarded as matters of opinion merely upon which the subscriber had no right to rely.20 s. c. 6 Railw. C. 564, 662. The mere plea of infancy is an immaterial plea, and issue being joined thereon, and found for defendant, the plaintiff is still entitled to judgment veredicto non obstante. Ib. The plea must show that the infant avoids the contract of subscription, on his coming of full age. Leeds and Thirsk Railw. v. Fearnley, 5 Railw. C. 644; s. c. 4 Exch. 26. And the appearance by attorney is not equivalent to an averment that the defendant is of full age. Ib. But where the plea alleged, that the defendant became the holder of shares, by reason of his having contracted and subscribed for them, and not otherwise; and that at the time of his so contracting or subscribing, and also at the time of making the calls, he was an infant; and that while he was an infant he repudiated the contract and subscription, and gave notice to the plaintiffs that he held the shares at their disposal; it was held a good prima facie bar; and that if the defendant, after he came of full age, disaffirmed his repudiation, or if he become liable, by enjoyment of the profits, those facts should be replied. Newry & Enniskillen Railw. v. Coombe, 3 Exch. 565; s. c. 5 Railw. C. 633. Where shares were sold to an infant, and were duly transferred to him, on the declaration of the vendor that he was of full age, and the father of such infant, by a deed, reciting that he had purchased on behalf of the son, and covenanting that he, on coming of age, would execute the deed, and pay all calls, and that the father would indemnify the company against all costs, by reason of the son being an infant, it was held that the father was a contributory. Ex parte Reaveley, 1 De G. & S. 550. See also Stikeman v. Dawson, 4 Railw. C. 585; s. c. 1 De G. & S. 90. 17 Cork & B. Railw. v. Goode, 13 C. B. 618; s. c. 24 Eng. L. & Eq. 245. 18 Chapple's case, 17 Eng. L. & Eq. 516; s. c. 5 De G. & Sm. 400. 19 North Carolina Railw. v. Leach, 4 Jones Law, 340. 20 Vawter v. Ohio & Miss. R. Co., 14 Ind. 174. § 56. 1. There can be no doubt, that subscribers to the stock of a railway company are released from their obligation to pay calls by a fundamental alteration of the charter. This is so undeniable, and so familiar a principle, in the general law of partnership, as not to require confirmation here. We shall briefly advert to the points decided in some of the more prominent cases, in regard to incorporated companies. The general doctrine applicable to the subject is very perspicuously stated by Woodbury, J., in an early case in New Hampshire.1 "Every owner of shares expects, and stipulates, with the other owners, as a corporate body, to pay them his proportion of the expenses, which a majority may please to incur, in the prosecution of the particular objects of the corporation. To make a valid change in this special contract, as in any other, the consent of both parties is indispensable." 2. In an important case 2 where it appeared that after calls fell 1 Union Locks & Canal Co. v. Towne, 1 N. Hamp. 44. But where the original charter or preliminary contract provides for modifications, the subscribers are still bound by all such as come fairly within the power. Cork & Youghal Railway v. Patterson, 18 C. B. 414; s. c. 37 Eng. L. & Eq. 398; post, § 254, n. 6; Nixon v. Brownlow, 30 Law Times, 74; s. c. 3 H. & N. 686. 2 Hartford & New Haven Railw. v. Croswell, 5 Hill, 383. In Winter v. Muscogee Railw., 11 Ga. 438, the charter was so altered as to allow the road to stop short of its original terminus and pass in a different route, and subscribers to the stock were held thereby released, unless they assented to the altera * due, but before suit brought, the company, being incorporated for the purpose of building a railway, procured an additional special act, by which they were authorized to purchase steamboats: it was held, that a subscriber, not having assented to the alteration, was absolved from his obligation to pay calls. 3. In a very elaborate opinion of Bennett, Chancellor, upon this subject, the following propositions are established: - tion. But where one gave his note for the first instalment, and his stock was forfeited, for non-payment of calls, he is not relieved from payment of his note by a material alteration of the charter. Mitchell v. Rome Railw., 17 Ga. 574. But any modification of the charter which affects merely the detail of proceedings in making and enforcing calls will not release subscribers to the stock, when such modification has been accepted by the corporation. Illinois River Railw. Co. v. Beers, 27 Illinois, 185. 3 Stevens v. Rutland & Burlington Railw., 29 Vt. 545. length is a valuable commentary upon this important subject. the learned chancellor maintains, The opinion at 1. That by the implied contract, among the proprietors of all joint-stock undertakings, there is a tacit inhibition against applying the funds, for any purpose beside the general scope of the original enterprise, and that this applies to corporations, equally with commercial partnerships. Natusch v. Irving, Gow on Part. App. 567. And that courts of equity will restrain a corporation from thus misapplying its funds by injunction. Ware v. Grand Junction Water Co., 2 Russell & Mylne, 461. And that this will be done upon the application of those shareholders who dissent. And in some instances will restrain the company from applying to the legislature for an enlargement of their powers. Cunliff v. Manchester & Bolton Canal Co., 13 Eng. Cond. Ch. 131; s. c. 2 Russell & My. 470, 475; Livingston v. Lynch, 4 Johns. Ch. 573. 2. That if the proposed alteration is only auxiliary to the main design of the original organization, it will not be enjoined; but if it be fundamental, it will be. That a variation in the course of a turnpike-road has been regarded as a fundamental alteration in the charter, Middlesex Turnpike Co. v. Lock, 8 Mass. 268, and, as such, to exonerate subscribers to the stock of the original company. [But Irvine v. The Turnpike Co., 2 Penn. 466, holds it will not have that effect.] And that in such cases it will make no difference, that the subscriber was a director in the company, and joined in the petition to the legislature for the alteration. Same v. Swann, 10 Mass. 384; Same v. Walker, 10 Mass. 390. The learned chancellor regarded the case of Revere v. The Boston Copper Co., which was cited, by the counsel for the defendants, as making rather against his purpose. 15 Pick. 351, 363. The case of Hartford & New Haven Railw. v. Croswell, 5 Hill, 383, 385, is relied upon, as having defined a fundamental alteration of the charter of a corporation, in the language of Ch. J. Nelson, to be one "by which a new and different business is superadded to that originally contemplated." 3. No one can be made a member of a joint-stock corporation without his con *1. That a majority of a joint-stock company cannot use the joint property except within the legitimate scope of their charter, sent. Ellis v. Marshall, 2 Mass. 269; nor can he be compelled to remain a member of such company after its fundamental organization is altered by act of the legislature. But an act of the legislature allowing a navigation company to raise their dam above the point of the original charter limit, is in furtherance of the original grant, and will not exonerate the subscribers. Gray v. Monongahela Navigation Co., 2 Watts & Serg. 156. And an alteration in the number of votes, to be cast by stockholders, if it impair the obligation of the contract resulting from the grant, is void, and so cannot release the subscribers. Osborn v. Bank of United States, 9 Wheat. 738. But any statute which has the force to effect an alteration in the structure of the corporation, will release subscribers. Indiana & Ebensburg Turnp. Co. v. Phillips, 2 Penn. 184. 4. That statutes extending the term of a corporation, for closing up its business, on petition of the directors, have no proper bearing upon the question. Lincoln & K. Bank v. Richardson, 1 Greenl. 79; Foster v. The Essex Bank, 16 Mass. 245. 5. That it is no fatal objection to the application that it is made at the instigation of a rival enterprise. Coleman v. Eastern Counties Railw., 10 Beavan, 1. [But see ante, § 20.] 6. That an existing railway company will be restrained in equity from applying its present funds to extend their line, or improve the navigation of a river connected with their line, or for obtaining an act of the legislature, authorizing them to do so. Munt v. Shrewsbury & Chester Railw., 13 Beav. 1; s. c. 3 Eng. L. & Eq. 144; Coleman v. Eastern Co.'s Railw., 10 Beavan, 1. 7. That members of an existing company cannot be compelled to surrender their interest to the company, or to others, and retire, in order to enable them to change the character of the enterprise. Lord Eldon, Chancellor, in Natusch v. Irving, supra. 8. In favor of the importance and necessity of having this constant supervision exercised over joint-stock companies, in order to keep them within the range of their legitimate functions, the learned chancellor thus concludes: · “Where it is clearly shown that a corporation is about to exceed its powers, and to apply their funds or credit to some object beyond their authority, it would, if the purpose of the corporation was carried out, constitute a breach of trust; a court of equity cannot refuse to give relief by injunction. Agar v. The Regent's Canal Co., Cooper's Eq. 77; The River Dun Navigation Co. v. North Midland Railw. Co., 1 Railw. C. 153, 154. The last case was before the Lord Chancellor, and he uses this language: If these companies go beyond the powers which the legislature has given them, and, in a mistaken exercise of those powers, interfere with the property of individuals, this court is bound to interfere; and that was Lord Eldon's ground in Agar v. The Regent's Canal Co.' The lord chancellor further adds: I am not at liberty (even if I were in the least disposed, which I am not) to withhold the jurisdiction of this court, as exercised in the case of Agar v. The Regent's Canal Co.' In that case Lord Eldon proceeded simply on the ground that it was necessary to exercise this jurisdiction of chancery, for the purpose of keeping these companies within the powers * and if they attempt to do so equity will restrain them. 2. The shareholders are bound by such modifications of the charter as are not fundamental, but merely auxiliary to the main design. 3. If a majority of a railway company obtain an alteration of their charter, which is fundamental, as to enable them to build an extension of their road, any shareholder who has not assented to the act, may restrain the company, by injunction, from applying the funds of the original organization to the extension. * 4. In a late case before the Master of the Rolls, it was held which the acts give them. And it is added: And a most wholesome exercise of the jurisdiction it is; because, great as the powers necessarily are, to enable the companies to carry into effect works of this magnitude, it would be most prejudicial to the interests of all persons with whose property they interfere, if there was not a jurisdiction continually open, and ready to exercise its power to keep them within their legitimate limits.' “The injunction must, therefore, be allowed; but only so far as to restrain the defendants, until the further order of the chancellor, from applying the present funds of the corporation, or their income from their present road, either directly or indirectly, to the purpose of building said extension in said road, or to pay land damages and other expenses which may be contingent upon the building of it; and also from using or pledging, directly or indirectly, the credit of the corporation in effecting the object of the extension; and at the same time, the company will be left at liberty to build the extension with any new funds which they may see fit to obtain for that specific object." See also Gifford v. New Jersey Railw., 2 Stockton's Ch. 171, where this subject is examined somewhat at length by the chancellor, and the conclusion arrived at, that it is competent for a court of equity to interfere in the management and application of the funds of a corporation, at the instance of a single stockholder; that the legislature may give additional power from time to time to corporations, and that such acts are binding, unless they conflict with vested rights, or impair the obligation of contracts. That a stockholder in an existing corporation has a vested right in any exclusive privilege of the corporation which tends to enhance the value of its stock, and that he would not be bound by any act of the legislature tending to produce such effect, without his consent; but that such consent will be inferred from long acquiescence, which is equivalent to express consent. In Scofield v. School District, 27 Conn. 499, it was held by a divided court, that one inhabitant of a school district might obtain an injunction against the corporation denying them the power to use their school-house for the purposes of religious meetings and Sunday schools, which is certainly carrying the doctrine to the very verge of absurdity. Post, § 174, n. 7. 4 Colman v. Eastern Counties Railw., 10 Beav. 1; s. c. 4 Railw. C. 513. See also Munt v. Shrewsbury & Chester Railw., 13 Beav. 1; s. c. 3 Eng. L. & Eq. 144; East Anglian Railw. v. Eastern Counties Railw., 11 C. B. 775; s. c. 7 Eng. L. & Eq. 505; MacGregor v. Deal & Dover Railw., 18 Q. B. 618; s. c. 16 Eng. L. & Eq. 180; Danbury & Norwalk Railw. v. Wilson, 22 Conn. 435; Mill-Dam Co. v. Dane, 30 Maine, 347; post, § 235; Winter v. Mus |