The Legislature having got out of the way, I at last find time to attend to the business you left with me on behalf of the Alton and Sangamon Railroad Company.
As to your first question ``Is there or is there not, a legal liability, raised in favor of the Company, against a subscriber under the 1st. and 14th. sections of their charter, independent of any special contract, upon which a suit may be sustained for instalments called for under said 14th. section?['']
Supposing you use the word ``subscriber'' as synonamous with ``stockholder'' I answer that in my opinion, such legal liability is raised, upon which such suit may be sustained.
The reason I note the word subscriber is, that I think a person might subscribe; and yet if he did not make the advance payment, he would not be fixed as a stockholder, and no suit for calls would lie [be?] against him.
Second question. ``If there be such legal liability, how far is it affected by that clause of Sec: 14 which declares that all instalments shall be paid as the Directors may deem fit `under the penalty of the forfeiture of all previous payments thereon' (meaning all previous payments made on each share of said stock)?['']
I find several decisions that this matter of forfeiture is a merely cumulative remedy given the Company, and that it does not at all affect the right of the Company to maintain a suit against a delinquent stock-holder. This I believe to be the law.
Third question. ``To sustain an action on this legal liability (if any exists) what material facts should be stated in the declaration? and what will be legal and competent proof to sustain them?''
As to the declaration. Upon this subject I have examined the books, and reflected a good deal; and my conclusion is that nothing more than a common count is necessary. You will find a very apt precedent for such a count in 2. Chitty's Pleading, 52. Notwithstanding this conclusion of mine, I have, through great caution, inserted two special counts in the declarations I have drawn. In the first of these, I state accurately, the creation of the Company by the Legislature, the opening of subscription books, the subscription and payment of five per cent by the defendant, the subsequent organization of the Company, and the calls for the instalments by the
Page 99Directors. In the other, I state the written article in the book, as a conditional promise of the defendant, with averments, of the performance of the conditions. I am bringing four suits;  and in the two most important, for the special counts, I file complete copies of the books, signatures and all; in the other two I risk it with copies of the article, without the names. For the common counts, I file accounts for the calls in all the cases.
As to the proof. To be entirely safe, we must prove
1. The creation of the Corporation
2. That the defendant is a Stockholder
3. That the Corporation has been organized
4. That the calls have been made
5. That due notice of calls has been given.
The first will be proved by the production of the charter.
The second, by the production of the subscription book with the defendant's name, and proof of the genuineness of his signature, together with any competent parol or written evidence, that he made the advance payment.
The third may be proved by the production of the book, containing the record entry of the organization; and it may also be proved by parol evidence that the Company is, in fact, doing business as an organized corporation.
The fourth can be proved by the production of the book, in which the orders for the calls are recorded, together with proof, in person or by deposition, that the book produced is the book of the corporation---and it can be proved in no other way, unless it can be first proved, that no record entry of the calls was made; or being made, has been lost or destroyed. Knowing the inconvenience of this, in these cases, I have labored hard to find the law otherwise; but it is vain.
The fifth may be proved by the common printer's or publisher's certificate, under our general statute of ``Advertisements.''
I am satisfied, from several adjudged cases, that a Stockholder is a competent witness for the company in these cases.
Gillespie and Stuart  have both told me that some law passed at this session making Stockholders competent witnesses, and also touching the evidence as to corporation records; but they can not tell the title of the act, and after considerable search, I have not found it.
Page 100Send me the name of the keeper of the records (Secretary or Clerk.) in New-York.
One of my men ``caved in'' & paid his instalments yesterday  Yours truly A. LINCOLN