Dayton v. Borst. that it was prima facie evidence of the indebtedness of the bank to Tinkham, on the cause of action therein set forth. During the trial, the acceptance of the bill on which that judgment was recovered, was produced, and it was proved that Cook, the president of the bank, accepted it. Whether the judge was right or wrong in his fourth and fifth conclusions of law, I regard as quite immaterial. No evidence offered to impeach the validity of the acceptance was excluded; and none was given which tended to establish its invalidity, as against these plaintiffs. The acceptance was purchased in good faith, without knowlege of any fact amounting to notice that it was not accepted for value, and upon full authority to the officer accepting, to accept as such officer. (The Bridgeport City Bank v. The Empire Stone Dressing Co., 19 How. Pr. R. 51; Goodmen v. Simonds, 20 How. U. S. R. 343.) The fifth finding of fact, viz: that there is due from the bank to Tinkham $5,647.94 and interest from November 1, 1853, which is wholly unpaid-is, therefore, fully sustained by the evidence. The only question of practical importance is this: Is the defendant, as a signer of the certificate of association, liable as a subscriber for the stock of the bank, so that the receiver may coerce him to pay such part thereof as the bank justly owes to persons who have dealt with it as a bank? The statute of New Jersey declares, "that the persons so associating shall, under their hands and seals, make a certificate, by the TERMS of which such association shall be BOUND, which shall specify, the names and residences of the shareholders, and the number of shares held by each of them respectively," &c. * * * The certificate of association filed (and which was signed by the defendant), specifies that he held 1,990 shares of the capital stock of said bank, amounting to $49,750. It is found as a fact that he never paid any part of said stock subscription. The evidence shows that he was the bank, and that its officers were his employees and acted Dayton v. Borst. according to his wishes, until he disposed of his interest to others, upon an expectation or promise that his vendees would protect him against liabilities. The certificate of association, and the statute under which it was filed, estop the defendant from denying that he was a subscriber for 1,990 shares of the capital stock of this bank; and he is liable, equally as he would be, if an actual subscriber in form for a like number of shares, to a subscription paper, containing an express promise to pay the amount so subscribed. (Sagory v. Dubois, 3 Sand. Ch. R. 466 and 492, 493; Buffalo and N. Y. City R. R. v. Dudley, 14 N. Y. R. 336.) The certificate of association must be read in connection with the statute under which it is made. The two, read together, declare that "the amount of capital stock of such association" is to be $50,000; that it is "divided" into 2,000 shares; that the defendant is a "shareholder," and, as such, holds 1,990 of said shares. These facts he is not at liberty to deny, and having taken this number of shares, he must pay for them to the plaintiff, as the representative of creditors of the association, until their just claims are satisfied. (16 N. Y. R. 451.) The defendant cannot claim exemption from liability as a shareholder, merely because the associates never chose a board of directors, nor succeeded in obtaining deposits, nor did other business than issue circulating notes and accept bills of exchange. On filing the certificate of association, the associates became a corporation (§§ 16 and 17 of the N. J. banking act), and could issue circulating notes, (§§ 3 and 4, Id.) The statute contemplates that such an association might become liable as surety. (§ 30, sub. 7.) Although the association never attempted to carry on "the business of banking," as described and provided for by the eighteenth section of the statute, yet, from the moment of its incorporation, it could create valid obligations, when acting in a mode not prohibited by the statute. As between the bank and Tinkham, the evidence is con Sanford v. The Eighth Avenue Railroad Co. clusive that the bank became his debtor. Tinkham has a right to the intervention of the receiver to collect from those indebted to the association, the means to pay the amount due to him. The defendant stands in the position of a debtor for its capital stock, which he received, and for which he has not paid, and the judgment appealed from should be affirmed. Judgment affirmed. HEWLETT SANFORD, Administrator, &c., of Gilbert Sanford, deceased, Plaintiff and Respondent v. THE EIGHTH AVENUE RAILROAD COMPANY, Defendants and Appellants. 1. In an action by an administrator, &c., of a person killed by being ejected from the cars of a railroad company, to recover damages for the wrong, the administrator is a competent witness in his own behalf. 2. In such action, the facts that the intestate entered the car intending not to pay fare, and that he refused to pay fare or leave, and resisted the efforts made to put him off the car, do not of themselves necessarily constitute that concurring negligence or fault which defeats a recovery. 3. If there is no actual negligence of the decedent, at the time of his being put off, to which his injury and death may in fact be imputed, the company is liable. (Before BosWORTH, Ch. J., and PIERREPONT and MONCRIEF, J. J.) Heard May 17, decided June 30, 1860. APPEAL by the defendants from a judgment against them, and from an order denying a motion made by them for a new trial. The action was tried before BoSWORTH, Ch. J., and a jury, on the 16th of November, 1858. This action is based on the allegation that the death of Gilbert Sanford was caused by the wrongful act and negligence of the defendants, and it is brought by H. Sanford, his administrator, to recover damages therefor. There was evidence to the effect, that on the 30th of December, 1855, the decedent, at the corner of Church and Chamber streets, got on one of the cars of the defendants; that he wanted to take the reins and drive, but this not Sanford v. The Eighth Avenue Railroad Co. being acceded to by the driver, he said to the driver, "I won't pay any fare; I came up last night and was not carried through;" he then went inside. Soon after this the conductor proceeded through the cars to collect the fare. He came to the decedent and asked him for his fare; he refused to pay, saying he had paid his fare the night before, but had not been carried through because of the snow. The conductor said he must pay or leave the car. The conductor passed on collecting fares, and then came back to decedent and told him that he was accountable to the company for the fare of every person. that rode in the car; that he must have the fare or eject him. The decedent refused to pay his fare or to leave the car. The conductor rung the bell, and the speed of the car, as some witnesses testified, was immediately "reduced" or "checked." Decedent rose at the conductor, and the two clenched and went toward the forepart of the car, both clenched. The conductor went out of the door of the car first, and backwards; the car was well filled, and it was with considerable difficulty that a passenger worked his way in from the rear platform. Decedent was a taller and stouter man than the conductor. There is a conflict of evidence, as to whether "the conductor pushed Sanford off" or whether the conductor went off first, or as to whether one or three persons went off the platform. There had been a heavy fall of snow the day previous; it had been scraped off the track by a snow-plow, and was piled up each side of the track, perhaps two feet high. There was a space between the projection of the car and the bank of snow; and it is alleged that decedent fell and rolled down between the car and snow, and was crushed. When found, he lay with his head up the street, (the direction in which the car was moving,) and his legs on the track. Decedent died on the fourteenth day after the Occurrence. The evidence itself is here omitted, a state Sanford v. The Eighth Avenue Railroad Co. ment of it not being material to an understanding of the charge. The view of its effect, taken by the court at general term, appears in the following opinions. A motion was made for a non-suit when the plaintiff rested, and also when the testimony was closed, which was denied, and defendants excepted. The defendants requested the court to charge eight several propositions, five of which are repeated in the charge, and the other three are as follows, viz : "VI. That, after the deceased refused to pay his fare, the conductor might then employ so much force as might be necessary to effect the removal of the deceased, at the same time doing no unnecessary injury. "VII. If the deceased refused to pay his fare, and resisted, and injury happened in consequence of resistance, it was an injury for which the company is not responsible, for it was a result attributable to his own wrongful conduct. "VIII. If the deceased was injured by the use of unnecessary force, used to effect what the company had a right to do, then the conductor, and not the company, is liable." The charge was as follows, viz.: "This action is brought to recover damages, on the allegation that the death of Gilbert Sanford was caused by the wrongful act, neglect, or default of the defendants. Prior to the 13th of December, 1847, no action of this kind could be maintained. If a person, injured by the wrongful act, neglect or default of another, died from such injury, all liability of the party doing the wrong died with the person who was the subject of the wrong. In other words, the cause of action was personal to the injured party. No one except him could bring it. When he died, the cause of action was at an end. An act was passed on the 13th of December, 1847, which provides in substance, that when one person is injured by the wrongful act, neglect or default of another, under such circumstances, that the person so injured could maintain an action and recover damages therefor, if living, then the person who would have been liable, if death had not ensued, shall be liable, even if death ensues, in an action to be brought by and in the names of |