9. Where a town or city stipulate with a railway company for adequate consideration to terminate their route, at a point beneficial to such town or city, this will not preclude the company from forming connections with other routes, by land or water, at the same point.15 10. And where the plaintiff made it a condition of his subscription to the capital stock of a railway, that it should pass through some portion of the counties of Monroe and Ontario, and the road was so located as not to touch either of those counties, it was held, that he was released from his subscription.16 35 Miss. 692, it was decided, that when the route on which a railroad is to be located is prescribed by its charter, a subsequent material deviation from the route therein prescribed will release the stockholders who had previously subscribed, and who did not consent to the deviation. It is not every deviation in the location of a railroad from the route prescribed in the charter which will release non-assenting stockholders, and it is impracticable to lay down any general rule to serve as a guide in determining the question of the materiality of the deviation. Each case must be determined by its own particular circumstances; and hence, where a stockholder resists the collection of his subscription for stock, upon the ground of a deviation from the route prescribed by the charter, he ought to set out in his plea such deviation clearly and distinctly, so that its materiality can be determined. A plea by a stockholder in a railway company, setting up a deviation from the route prescribed by the charter as a defence to a suit, to enforce his subscription for stock, which describes the deviation as follows: "That said road was not constructed in accordance with the requirements of the charter," is bad for uncertainty. 15 Baltimore & Ohio Railw. v. Wheeling, 13 Grattan, 40. 16 Buffalo, Corning, & N. Y. Railw. v. Pottle, 23 Barb. 21. And where a party, who was not a stockholder, executed a promissory note to a railway company, promising to pay them $200, in consideration that they would locate their depot in block 94, in Indianapolis, to be paid when the company should commence the construction of their depot, and the line of the company's road extended from Terre Haute, through Indianapolis, to Richmond, a distance of 150 miles, at the date of the note, but by subsequent act of the legislature, was divided, at Indianapolis, and the portion between Indianapolis and Richmond, being about one-half, was given to another company, which built their depot in another portion of Indianapolis, the former company only constructing a freight depot, on block 94, it was Held, that by the alteration of the charter of the Terre Haute and Richmond Railway Company, and the acceptance thereof by the company, the company became substantially a different corporation, and were unable to perform the condition upon which the note was to become payable, and that the circumstance, that the depot located on block 94 was of some advantage to the plaintiff in error, was of no importance. But an amalgamation of two railway companies, effected subsequent to the 11. Where the articles of incorporation of a railway company restrict calls upon subscriptions to twenty per cent in one year, and ten per cent at one time, and also provide that said articles may at any time be changed by the unanimous consent of the board of directors, it is competent for the board to so change the mode of making calls, as to require them to be made not exceeding five per cent a month, and such change in the articles as to the mode of making calls will be binding upon previous subscriptions.17 12. And in a somewhat recent case 18 it was held, where the legislature had reserved, in the charter of a corporation, the power to modify or repeal the same, that members of the corporation hold their shares subject to such liability as may attach in consequence date of a subscription to the stock of one of them, but which had been authorized by an act of the legislature prior to that time, will not release the subscription. And it is of no importance, that the consolidation took place without the knowledge of the subscriber. Sparrow v. Evansville & Crawfordsville Railway, 7 Porter (Ind.), 369. The subscription of stock to an amalgamated company is a sufficient consent to the amalgamation. And such consent by the stockholders seems to be regarded as requisite to the power of the legislature to amalgamate existing railway companies. Fisher v. Evansville & Crawfordsville Railway, 7 Porter (Ind.), 407. Where one of the stockholders of a railway company agreed with the company to subscribe and take a given number of shares in the capital stock, if the company would adopt a particular route, there being two under consideration, and the company in consequence adopted that route, it was held that the party was bound by his contract to take and pay for the number of shares he had thus agreed to subscribe. Spartanburgh & Union Railw. v. De Graffenreid, 12 Rich. 675. But where in such a case, by a subsequent amendment of the charter, the route in consideration of which the subscription was made was abandoned, and another adopted, the subscriptions were held to be thereby avoided. Hester v. Memphis & Charleston Railw., 32 Miss. 378. But one who makes an absolute subscription to a railway, cannot avoid it by proving a parol condition upon which it was made, not complied with, unless he show that fraud also existed in the contract. North Carolina Railw. v. Leach, 4 Jones Law, 340. One of the commissioners, there being five, has no power to give any binding assurance as to the location. Ib. If the party have any remedy in such case by mandamus or injunction, where the directors locate the road differently from the requirements of the charter, and omit to resort to it at once, he is bound by such acquiescence. Ib. 17 Burlington & Mo. River Railw. v. White, 5 Clarke, 409. 18 Bailey v. Hollister, 26 N. Y. 112. But it is here suggested, that after the charter of a corporation has expired, there is no power to revive it, by any agency less than the consent of all the corporators. of the extension or renewal of the charter, although obtained without their consent. 13. And it was also here considered, that the estate of an intestate shareholder succeeded to the personal responsibility of the deceased in the corporation, and this will render the administrator liable for the debts of the corporation contracted after the decease of the intestate, to the same extent the deceased would have been if still living; and that the stockholder or his personal representative can only relieve himself from responsibility by a bona fide and absolute sale of the stock. 14. A railway company do not release money-subscriptions by accepting large land-subscriptions at a subsequent date.19 15. And a railway corporation, chartered in one state to construct and operate a road within that state, cannot emigrate into another state, even where that state had given legislative permission to act therein. And after having transferred its business office into another state, where it performed all its corporate functions, it is not competent for it to make valid calls in such other state upon subscriptions taken in the place of its creation.20 SECTION XI. Subscriptions before date of Charter. 1. Subscriptions before date of charter good. 4. Subscription on condition, an offer merely. 5. Conditional subscription takes effect upon performance of the condition. 6. How far commissioners may annex conditions to subscription. 7. Such conditions void, if fraudulent as to company. § 57. 1. It has been held that one who subscribes before the act of incorporation is obtained, and, by parity of reason, before the organization of the company, although after the act of incorporation, is holden to the corporation, to pay the amount of his subscription. And a suit is sustainable, in their name, upon any securities given in the name of the association, or of the commissioners for organizing the company, and equally upon the sub 20 19 Hornaday v. Ind. & Ill. Central Railw., 9 Ind. 263. scription itself in the name of the corporation. And it is not competent for one, who is a subscriber to such an enterprise, to withdraw his name while the act of incorporation is going through the legislature.2 2. But an informal subscription, which is never carried through the steps necessary to constitute the subscribers members of the company, has been held inoperative, as no* compliance with the act. And a subscription, upon condition that the road is built through certain specified localities, the company at the time not assuming to build the road through those places, will not, it has been held, make the subscriber liable to an action for calls, even if the condition be ultimately performed by the company. But 1 Kidwelly Canal Co. v. Raby, 2 Price, Exch. 93; Selma & Tenn. Railw. Co. v. Tipton, 5 Alabama, 786; Vermont Central Railw. Co. v. Clayes, 21 Vt. 30; Delaware and Atlantic Railw. v. Irick, 3 Zab. 321. In the last case, the very point ruled, is, whether the company were proper plaintiffs, in an action to enforce calls against one who signed the commissioners' paper for shares before the organization. Held, the commissioners were to be regarded as agents of the company. See also Troy & Boston Railw. v. Tibbets, 18 Barb. 297; Stanton v. Wilson, 2 Hill, 153; Troy & Boston Railw. v. Warren, 18 Barb. 310; Hamilton Plank Road Co. v. Rice, 7 Barb. 157; Stewart v. Hamilton College, 2 Denio, 417; Danbury & N. Railw. v. Wilson, 22 Conn. 435. So also a subscription to the capital stock of a railway, made on the solicitation of one who was not a commissioner, but who felt an interest in the road, and volunteered to take up subscriptions to its stock, was held valid in a very recent case. Railway Company v. Rodrigues, 10 Rich. (S. C.) 278. 2 * Kidwelly Canal Co. v. Raby, 2 Price, Exch. 93; Brownlee v. Ohio, Ind. & Ill. Railw. Co., 18 Ind. 68. 3 Troy & Boston Railw. v. Tibbits, 18 Barb. 298. • Macedon & Bristol Plank R. v. Lapham, 18 Barb. 313. In this case it seems to have been decided that such a subscription is not good, as a subscription for stock, not upon the ground mainly that it was conditional and so against public policy, or from want of mutuality, but upon the ground of an extension of the road and an increase of the capital stock. But see also Utica & Sch. Railw. v. Brinckerhoff, 21 Wend. 139, where such a decision is made. But the current of authority, both English and American, is almost exclusively in a counter direction. It is impossible, upon any fair ground of construction, to consider such a subscription, where the road is located in a given line, in faith, and in fulfilment of the condition, as a mere offer, unaccepted. It is a proffer, a proposal, accepted, and as much binding as any other possible consideration. But if it were to be regarded as a mere offer, standing open, upon every principle of reason and law, when accepted, according to its terms, it is binding as a contract and no longer revocable, and the only case, of much weight, which ever attempted to maintain the opposite view, that of Cooke v. Oxley, 3 T. R. one might perhaps raise some question, * whether, upon general principles, such a subscription ought not to be binding, as a 653, has been regarded as overruled upon that point for many years. See L'Amoreux v. Gould, 3 Selden, 349; Conn. & Passumpsic Rivers Railw. v. Bailey, 24 Vt. 478. In the case of Boston & Maine Railw. v. Bartlett, 3 Cush. 224, the subject is very justly illustrated by Mr. Justice Fletcher: “ In the present case, though the writing signed by the defendants was but an offer, and an offer which might be revoked, yet, while it remained in force and unrevoked, it was a continuing offer during the time limited for acceptance; and, during the whole of that time, it was an offer every instant, but as soon as it was accepted it ceased to be an offer merely, and then ripened into a contract. The counsel for the defendants is most surely in the right, in saying that the writing when made was without consideration, and did not, therefore, form a contract. It was then but an offer to contract; and the parties making the offer most undoubtedly might have withdrawn it at any time before acceptance. "But when the offer was accepted, the minds of the parties met, and the contract was complete. There was then the meeting of the minds of the parties, which constitutes and is the definition of a contract. The acceptance by the plaintiffs constituted a sufficient legal consideration for the engagement on the part of the defendants. There was then nothing wanting in order to perfect a valid contract on the part of the defendants. It was precisely as if the parties had met at the time of the acceptance, and the offer had then been made and accepted, and the bargain completed at once. 66 A different doctrine, however, prevails in France, and Scotland, and Holland. It is there held, that whenever an offer is made, granting to a party a certain time within which he is to be entitled to decide whether he will accept it or not, the party making such offer is not at liberty to withdraw it before the lapse of the appointed time. There are certainly very strong reasons in support of this doctrine. Highly respectable authors regard it as inconsistent with the plain principles of equity, that a person who has been induced to rely on such an engagement should have no remedy in case of disappointment. But, whether wisely and equitably or not, the common law unyieldingly insists upon a consideration, or a paper with a seal attached. "The authorities, both English and American, in support of this view of the subject, are very numerous and decisive; but it is not deemed to be needful or expedient to refer particularly to them, as they are collected and commented on in several reports as well as in the text-books. The case of Cooke v. Oxley, 3 T. R. 653, in which a different doctrine was held, has occasioned considerable discussion, and, in one or two instances, has probably influenced the decision. That case has been supposed to be inaccurately reported, and that in fact there was in that case no acceptance. But, however that may be, if the case has not been directly overruled, it has certainly in later cases been entirely disregarded, and cannot now be considered as of any authority. 66 'As, therefore, in the present case, the bill sets out a proposal in writing, and an acceptance and an offer to perform, on the part of the plaintiffs, within |