to the defendant, nor had he any knowledge thereof, until after suit brought.

"4. The plaintiff, in the fall of 1852, located, and in the winter, spring, and summer of 1853 constructed, her railroad through Lafayette, and crossed the Wabash river at a point three miles due north of Lafayette, and not within the town, and has ever since maintained and operated said road. No formal notice of such loca tion or construction was ever given defendant.

"5. The plaintiff did not at any time tender or offer to give the defendant a certificate of stock before the trial of this cause, upon the payment of his subscription."

1. The agreement in this case to cross the Wabash river north of Brown street in Lafayette required the company to cross that stream where a northerly line from said street would strike it. And it was not necessary to cross in the city of Lafayette unless such line struck the river within the city.

2. Conditional subscriptions of railroad stock may be valid: Clem ▼. Newcastle etc. R. R. Co., 9 Ind. 488 [68 Am. Dec. 653].

3. On the acceptance of the subscription in this case, by the entry thereof made by the company on their record, the contract of subscription became complete and absolute, and the subscriber became a stockholder: Kentucky Mutual Ins. Co. v. Jenks, 5 Ind. 96; Redfield on Railways, 98.

4. It would seem that, such being the case, no notice from the company was necessary before suit brought upon the subscription: Ross v. Lafayette etc. Co., 6 Ind. 297.

5. But if notice of the location was necessary, the agreement that the kind of notice named in the contract should be sufficient did not render invalid any other kind that might also be in itself sufficient in point of fact: Hankins v. Shroup, 2 Ind. 342. And as McCormick was an actual resident of Lafayette, a compactly built city of not more than fifteen thousand inhabitants, the constructing and operating the road for a period of between two and three years after his subscription, before suit upon it, was sufficient notice to him, in point of fact, of the location of the road through said city. The contract required no notice that installments were due and required to be paid: See Ross v. Lafayette etc. Co., supra.

Such cer

No tender of a certificate of stock was necessary. tificate does not constitute the title of the stockholder to his stock. The registry of his name upon the stock-book of the company, opposite the number of his shares, gives him title to his stock. That book, as a member of the corporation, he has

at all times a right to inspect. To that book reference is had in paying dividends, in receiving votes at corporation elections; upon that book transfers of stock, as between the company and the owner, are made; and of it, copies are given to stockholders. Redfield on Railways, 43.

Certificates of stock can always be demanded and obtained by the owners, when they may desire them. They are convenient, as evidences of stock existing upon the proper book, in making sale of stock to third persons, but are not indispensable. Redfield on Railways, 50; Angell & Ames on Corp. 411. When a subscriber pays an installment of stock he should have a re ceipt of payment.

The judgment is reversed, with costs. Cause remanded, with instructions to enter judgment upon the agreed case for the plaintiff.

SUBSCRIPTION TO CAPITAL STOCK OF CORPORATION MAKES ONE STOCK. HOLDER, and it becomes a binding contract on acceptance by the corporation, Spear v. Crawford, 28 Am. Dec. 513; Payne v. Bullard, 55 Id. 74, and note to same 77; Instone v. Frankfort Bridge Co., 5 Id. 638. It is evidence that one is a stockholder in a corporation where it is shown that he had subscribed for some shares therein; that his name was entered upon the records of the corporation; that he had stated that he had taken such shares; and that the corporation treasurer had offered him his certificate therefor: N. H. Cent. R. R. v. Johnson, 64 Id. 300. For other cases showing who are stockholders in a corporation, see note to Freeland v. McCullough, 43 Id. 697, discussing the subject at length; Franklin Glass Co. v. Alexander, 9 Id. 96, also containing a discussion of the same.

SUBSCRIPTIONS MAY BE MADE CONDITIONALLY: Franklin Glass Co. v. Alexander, 9 Am. Dec. 96; but parol evidence to vary stock subscription or show it conditional when it is not so on its face, is inadmissible: Wight v. Shelby R. R. Co., 63 Id. 522.

FAILURE TO ISSUE CERTIFICATES.-A stockholder will not lose his rights in a corporation for want of a certificate issued to him by the corporation: Chester Glass Co. v. Dewey, 8 Am. Dec. 128.

SUBSCRIBING FOR SHARES IN STOCK OF EXISTING CORPORATION is a good consideration to support an action against the subscriber: Selma & Tenn. R. R. Co. v. Tipton, 39 Am. Dec. 344.

CITATIONS OF PRINCIPAL CASE.-A contract by a subscriber for stock in a corporation, to pay by installments, is in effect a promise to pay on demand; and the demand involved in the suit itself to enforce the subscription is alone sufficient, without notice of the time and place of payment: Johnson v. Crawfordsville R. R. Co., 11 Ind. 284; Smith v. Indiana etc. R'y Co., 12 Id. 64; Eakright v. Logansport etc. R. R. Co., 13 Id. 408; Brownlee v. Ohio I. & F. R. R. Co., 18 Id. 72; Beckner v. Riverside etc. Turnpike Co., 65 Id. 470. The acceptance by the company of the subscription would seem to make the book in which it was made the stock-book of the company. The acceptance of the subscription by the company renders the contract complete, and no notice is necessary to defendant before bringing suit upon it: Brownlee v. Ohio I. ▲

I. R. R. Co., 18 Id. 72. It is the act of subscribing, or the registry of the stockholder's name upon the stock-book of the company, opposite the number of his shares, that gives him his title: Cincinnati etc. R. R. Co. v. Pearce, 28 Id. 508; Lincoln v. State, 36 Id. 163. The certificate does not constitute title to the stock, and no certificate is necessary to vest the title to it. The certificate is only evidence of title which can be demanded and obtained by the owner of stock whenever he may desire: Id.; Beaver v. President and Trustees of Hartsville University, 34 Id. 248. A complaint is not bad because it does not aver that certificates of stock were tendered to the defendant before the action was brought. No such tender is necessary: Miller v. Wild Cat Gravel Road Co., 52 Id. 58. And the paragraph of an answer setting up no tender of certificate of stock is bad: Vawter v. Ohio & Miss. R. R. Co., 14 Id. 175; Hardy v. Merriweather, Id. 206; Heaston v. Cincinnati etc. R. R. Co., 16 Id. 279: Drover v. Evans, 59 Id. 458; Beaver v. President etc. of Hartsville University, 34 Id. 248; President etc. of Hartsville University v. Hamilton, Id. 509. The principal case was summarized in Branham v. Record, 42 Id. 198; and extensively quoted from in Slipher v. Earhart, 83 Id. 178.

TYNER v. STOOPS.

[11 INDIANA, 22.]

INDIVIDUAL NOTE OF ONE PARTNER GIVEN TO FIRM CREDITOR, and pay. able at maturity of firm debt, is merely a promise by one partner to pay. the firm debt, is not a collateral security for the debt, and the creditor is not barred from suing the firm because of his laches in not collecting the note before the maker's insolvency.

TAKING PROMISSORY NOTE FROM ONE OF SEVERAL JOINT DEBTORS or from third person is not a discharge of the debt unless such is the express agreement.

INSTRUCTION ASSUMING FACT WHICH SHOULD BE LEFT TO DETERMINATION OF JURY IS ERRONEOUS.

ADMISSION BY FIRM CREDITOR THAT BY TAKING INDIVIDUAL NOTE OF ONE PARTNER he had discharged the firm is not evidence of an agreement to discharge the firm, when made after the maker's insolvency, and indicating his own conclusion as to the effect of his taking the note.

ACTION for the value of goods sold.

case.

The opinion states the

Z. Morrison, J. D. Howland, and G. Holland, for the appellants.

J. Kyman and P. L. Spooner, for the appellee.

By Court, WORDEN, J. This was an action by the appelles against the appellants to recover the value of eleven thousand two hundred and fifty pounds of pork sold and delivered by him to them.

The defendants answered: 1. In denial; 2. Payment; 3. That the defendants delivered to the plaintiff the note of Richard

Tyner for four hundred dollars, which the plaintiff received in full satisfaction of the claim; 4. That the pork at the price agreed upon, amounted to three hundred and ninety-two dollars and four cents; that at the time of the sale and delivery thereof, viz., on the thirtieth of December, 1853, and before and afterwards, the plaintiff and Richard Tyner, one of the defendants, had other private dealings and accounts between them; that afterwards, on the twenty-first of February, 1854, the plaintiff and Richard Tyner settled their private dealings and accounts, and also for the pork, and upon the settlement there was found due the plaintiff the sum of four hundred dollars, including the price of the pork, and thereupon R. Tyner executed and delivered to the plaintiff his individual note for said four hundred dollars, which the plaintiff received in full satisfaction of the claim, and thereupon the price of the pork was credited to Tyner, and charged to defendants; and afterwards, on the twenty-third of June, 1854, the partnership affairs between the defendants were settled and closed accordingly; that the plaintiff still holds the note of Tyner partly paid and partly unpaid; that on the tenth of November, 1854, said Tyner failed, and since then has been and is insolvent.

The plaintiff replied to the second paragraph, denying the payment, and demurred to the third and fourth paragraphs, and the demurrer was sustained as to the third, and overruled as to the fourth. The plaintiff thereupon replied to the fourth, that the pork was sold and delivered on the thirtieth of December, 1853, on a credit of six months, whereupon the defendants executed to the plaintiff a memorandum in writing, by which they acknowledged the receipt of the pork, to be paid for at the rate of four dollars per one hundred pounds, which memorandum the plaintiff held until the twenty-first of February, 1854, when he presented the same to the agent of the defendants, Richard H. Tyner (by whom the memorandum was executed on behalf of defendants), who then, on behalf of the defendants, received the same; and on the plaintiff suggesting to him that he, the plaintiff, ought to have a note for the price of the pork, the said Richard H., still being such agent of defendants, as such agent, executed and delivered to the plaintiff a promissory note for the price of the pork, as follows, viz.:

"$400.

BROOKVILLE, IND., February 21, 1854. "For value received, on the first day of July next I promise to pay to Robert Stoops, or order, four hundred dollars.

"R. TYNER,

"Per R. H. TYNER"

Which note the plaintiff received and accepted as a note or memorandum of the amount due him from the defendants for the pork, and not in payment or satisfaction thereof. That at the time of the sale of the pork and at the time of the making of the note said Richard Tyner was insolvent, and ever since has been, which insolvency he concealed, and which was wholly unknown to the plaintiff; and the plaintiff produces the note, and offers to surrender it to be canceled.

The cause was tried by a jury, who found for the plaintiff the sum of four hundred dollars, on which there was judgment over a motion for a new trial.

The first error assigned is the sustaining of the demurrer to the third paragraph of the answer. This we cannot notice, as no exception was taken to the ruling below.

The bill of exceptions filed sets out the evidence, and discloses the points relied upon for the reversal of the judgment. The material facts, as they appear from the evidence, are that about the last of December, 1853, the plaintiff sold and delivered to the defendants pork to the amount in value of about four hundred dollars, at prices agreed upon, upon a credit of six months, for which a receipt or memorandum was then given by defendants to plaintiff. Afterwards Stoops came to the counting-room of defendants, and said he wanted to settle, and produced the receipt given him as above. Defendants' agent looked over the pork-books, and saw the amount of the pork, also over the store-book and the cash-book of R. Tyner, and found, including all the dealings, that there was due to Stoops over four hundred dollars, all over which sum was then paid him, and the note above set out was then executed and delivered to him, made payable six months from the time the pork was delivered. Stoops knew it was the individual note of R. Tyner, and not of Tyner & McCarty. Defendants' agent so told him at the time. McCarty was not present at the time the note was given. Stoops, at the time of this transaction, before the note was given, remarked that he wanted something to show the amount of the pork when defendants' agent proposed to write, and did write, the note in question, Stoops remarking: "Anything to show the amount they owed him for the pork." There was nothing said at the time of this transaction about discharging McCarty, or the note being a satisfaction of the claim. One witness (a clerk of the defendants) thinks that at that time Tyner was largely in debt, and doubted his solvency, but he continued in business up to his failure about the