#### HAYWOOD AND PITTSBOROUGH PLANK ROAD COMPANY v. ELIAS BRYAN.

Where an Act of Assembly, incorporating a company, in which the State was not interested, directed that a certain per centage should be paid at the time of making subscriptions to its stock, but the company organized, and admitted a subscriber to participate in its meetings, and in the regulation of its affairs, without paying such per centage, it was Held that he could not afterwards disavow his membership, and refuse to pay his subscription.

Where the writings, appointing proxies to act in the meetings of the stockholders of an incorporated company, had, after being used, been thrown aside as useless, it was Held not to be necessary to show that search had been made for them, preliminary to the introduction of parol evidence of their contents.

Where a party had been permitted to subscribe to the stock of an incorporated company a certain amount, payable in materials, which would be needed in the operations, on his refusing to pay in such materials, it was Held that his subscription became demandable in money, and that an action of debt would lie for its recovery.

Action of debt, tried before SaundeRS, J., at the Spring Term, 1858, of Chatham Superior Court.

The action was brought to recover the balance due upon a subscription to the Haywood and Pittsborough Plank Road Company, which was $400 00, with the privilege of paying the same in sawed lumber. Upon making such subscription, the defendant did not pay the preliminary per centage required by the charter ; his participation in the affairs of the company was by proxies appointed, upon two occasions, to act in the meeting of stockholders, representing eight shares. The writings, by which the proxies were appointed, were not produced, on the trial. It was shown that the by-laws of the company made no provision on this subject, and at the meetings of the stockholders after the committee upon proxies made their report, the papers conferring the authority, were thrown aside as useless, and generally left upon the floor of whatever room the meeting occupied ; that in this case, the persons appointed had not preserved them; that the company ■had no archives except such papers as were produced in *83Court; that these writings were not among them, hut that the officers of the company had made no search for them. It also appeared that demands were made on the defendant, at the mill, for the lumber, as instalments were called for by the directors ; that he neglected, and at last declined to furnish it. After due compliance with the requisitions of the charter, the defendant’s stock was sold, and this action is brought to recover the balance.

The points of law, made by the defendant below, were: 1st. That the evidence upon the subject of the proxies, ought to have been excluded. 2ndly. That the non-payment of the preliminary per centage, rendered the contract null. 3rdly. That under the circumstances of the case, an action of debt would not lie. ITis Honor ruled these points against the defendant, for which, he excepted.

Yerdict for the plaintiff. Judgment. Appeal by the defendant.

Phillips and K. P. Battle, for plaintiff.

Bmighton and PLowze, for defendant.

Battle, J.

In considering the objections urged by the defendant, on the trial, against the right of the plaintiff to recover, we will notice first, that which denies validity to his subscription, because of his not having paid one dollar, on each share, at the time when he made it. The plaintiff owes its existence as a corporation to the act of 1852, ch. 108, the three first sections of which, prescribe the manner in which it shall be formed, and the name which it shall bear. The fourth section then enacts as follows : “ That upon any subscription of stock as aforesaid, there shall be paid at the time of subscribing, to the said commissioners, or their agents appointed to receive subscriptions, the sum of one dollar ,on every share subscribed, and the residue thereof shall be paid, or secured in such manner, and at such time or times as may be required by the board of directors of said company.” The defendant did not make the first payment, which was requir*84ed at the time of his subscription, and he contends that such omission or neglect made his subscription null and void, and that consequently, he never beeame a stockholder in the company. The answer to this is obvious. Neither the section above recited, nor any other part of the charter, declares the subscription void for the want of such payment, and, therefore, the very foundation of the objection, which occasioned the difficulty in the case of McRae v. Russell, 12 Ire. Rep. 224, with regard to the 'Wilmington and Mancliester Bailroad Company is wanting. The State is not in any way interested in the company, either as a stockholder, or as a contributor to its funds, or as guarantor of its debts, and, therefore, it was a question solely between the company and the stockholders as to what should be the time, or the manner in which the amount subscribed should be paid. It may be, that at the first general meeting of the stockholders, the defendant might have been excluded from acting as one of them until he had paid the preliminary amount, required of him, according to the terms of his subscription, but they were not bound to do so, either by the terms of their charter or by any known principle of law. If they chose to trust him, for the money he owed them, it would be a strange rule, which would allow him to take advantage of their forbearance and his own neglect. They were at liberty to receive him as a stockholder, and if they did so, and he acted as one of them in organising the company, and in the regulation of its affairs, he cannot afterwards be heard to disavow his connection with it, and repudiate his contract to contribute to its funds.

But he alleges, that there was no proper evidence, that he ever did act as a stockholder ; and this brings us to consider his objection to the testimony, which was allowed to be introduced to prove his proxies. This objection is easily disposed of. The written instruments, upon which it was contended, that his proxies appeared and acted, were clearly proved to have been throwned away, as waste paper, after they had been examined and verified by a committee appointed for that purpose. Those instruments must, therefore, *85be considered as having been destroyed, and it was idle to require proof that they had been searched for, before admitting secondary evidence of their contents. The true rule on that subject is well expressed in Robards v. Mclean, 8 Ire. Rep. 522, that a to admit secondary evidence, it is sufficient to show, that there is no reasonable probability, that any thing has been suppressed.”

The last objection, which appears upon the defendant's bill of exceptions, is as far from being tenable as either of the others. The defendant’s subscription was, in effect, for eight shares of the capital stock of the company, amounting to $400, to be paid in lumber, at his own saw-mill, at a certain agreed rate. He undoubtedly had the option to pay for the amount of his subscription in that way, and the company so understood it, and were acting in good faith when they called upon him for the lumber. We cannot see the foree of the argument that, because his subscription was, by the consent of the company, to be paid in that manner, he did not become a stockholder until payment was made in full. The company would necessarily need plank for their road, and they had as much right to buy from the defendant as from any other person, and we are unable to perceive any 'difference between paying him with his own snbscription-money, and with any other funds belonging to them. He had the option of paying by delivering lumber at his mill in discharge of his contract, but when he first neglected, and then refused to avail himself of it, it became an obligation to pay money, and the company had the right, as in other cases, after the sale of bis stock, as prescribed in their charter, to sue him, in debt, for the sum thus ascertained to be the balance; Hamilton v. Eller, 11 Ire. Rep. 276. If this view of the case be correct, the eases of Grandy v. Small, 3 Jones’ Rep. 8, and Cole v. Hester, 9 Ire. Rep. 23, referred to by the defendant’s counsel, have no application.

Pee C ueiam, Judgment affirmed.