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