Alabama & Florida R. R. Co. vs. L. W. Rowley.-Opinion of Court.

several calls for the payment of instalments of stock, which are alleged to have been made by the board of directors?

In our investigation of this point, the court is thrown upon its own resources, no authorities having been cited by the counsel of either side. The only case directly on the point that we have had any reference to, is that of Ross vs. Lafayette and Ind. Railway, 6 Porter (Ind.) R. 297. The report of this case is not within our reach, but it is referred to in Redfield on Railways. His reference is as follows: "But where the subscription contains a provision that payment shall be made at such times and places as should thereafter be directed by the directors, and shall be applied to the construction of the road, it was held that the subscription did not become payable until the directors, at a regular meeting, had fixed the time and place of payment. But it is further held in this case that it is not necessary to give notice to the subscribers of the time and place of payment." Redfield on Railways, 82.

By what process of reasoning the court were enabled to arrive at the position announced in that case, we are at a loss to determine, and it is to be regretted that we have not access to the report. For aught that we know, there may have been something in the charter of incorporation which warranted the position assumed. Be that as it may, we are satisfied that upon general principles, and in the absence of any provision in the charter, warranting the position, it is incorrect, and in this we are sustained by the authority of Mr. Redfield. Commenting upon this case, and referring particularly to the point under consideration, he says: "This point in the decision seems not altogether in accordance with the usual practice in such cases, or the general course of decision in regard to calls, which, upon general principles, must be notified to subscribers before an action can be maintained."-Ib.

Alabama & Florida R. R. Co. vs. L. W. Rowley.-Opinion of Court.

The "general principle" alluded to in the foregoing citation we take to be the one with which we set out in this argument, viz: "that when the matter alleged in the pleading is to be considered as lying more properly in the knowledge of the plaintiff than of the defendant, then the declaration ought to state that the defendant had notice thereof." Now in whose knowledge will the fact of the making of calls or assessments upon the shares held in the capital stock be considered as more properly lying-in that of an individual private stockholder, or in that of the corporation, which acts and speaks by and through its authorized and acknowledged agent, the Board of Directors? Indeed, if we are not greatly in error a private stockholder of an incorporated company has no right to have access to the minutes of the proceedings of the directors, unless that right is expressly given by the charter, and consequently and of necessity he must remain ignorant of their action until they choose to make that action known. With reference to the matter of notice as affecting a private stockholder, there is a very marked and obvious difference between the action of a general meeting of the stockholders and that of a Board of Directors. All the proceedings of the former are presumed to be known to each individual stockholder, it being not only his right, but his duty to be present, for the purpose of participating in such proceedings. But not so with reference to the proceedings had at a meeting of the Board of Directors. These proceedings are usually private, and the presumption of notice will not attach to a private stockholder sooner than it will to an entire stranger. It may be suggested that the act of subscribing for the two shares of stock created a debt against the defendant, and that he was bound to take notice of the time of payment, the same as the giving of a note payable on demand, which may be sued on without any special demand of payment, the institution of the suit being

Alabama & Florida R. R. Co. vs. L. W. Rowley.-Opinion of Court.

There is this difThe giving of a promissory

held to constitute a sufficient demand. ference between the two cases. note payable on demand is held to create a debt in presenti, absolute and unconditional, which the maker of the note may pay off at any time before a demand is made, whereas the act of subscribing to the stock of the company does not create a present indebtedness, but the obligation to pay, by the very terms of the contract, is contingent, and made to depend upon a condition precedent, to-wit: the calls to be made by the directors. If this be so, the performance of the condition precedent being without the exclusive control of the company, it follows, upon the general principle before announced, that to raise the obligation to pay, there must be an actual demand, or what may be equivalent to the same, under the provisions of the charter. We conclude, therefore, that in this case no right of action accrued against the defendant for the recovery of the several calls mentioned in the declaration, until after he should have received proper notice that they have been made in the manner prescribed in the charter. This brings us to the consideration of the second point, viz: the sufficiency of the notice which was attempted to be proved at the trial.

It will be remembered that the only effort to prove notice to the defendant that the calls had been made by the directors, was the exhibition of the advertisement in the Pensacola Gazette, calling upon the stockholders generally to pay the instalments due on their shares of stock. It is quite usual, we believe, in charters of incorporation to provide for giving of notice by public advertisement, and where such mode is prescribed, either in the charter or by-laws of the company; we can perceive no objection to the validity and sufficiency of such notice. But in the absence of such provision we think it might be attended with irreparable injury to innocent parties to establish as legal so loose a mode

Duggan vs. State of Florida.-Statement of Case.

of proceeding. We have examined the charter of this company and have been unable to discover any provision on the subject.

If the publication of the notice in the Pensacola Gazette should be held to be sufficient notice, there is no reason why it may not have been published in one of the papers printed at the capital of the State. That the office of the company was located in Pensacola is no answer, for it is quite apparent that as to this defendant he was not a citizen of Pensacola, but a resident in another county, to-wit: the county of Santa Rosa. Upon mature consideration, we are of opinion that the proof of notice was not sufficient to fix the liability of the defendant.

It is therefore ordered that the judgment of the court below be affirmed with costs.

JAMES DUGGAN, APPELLANT, VS. THE STATE OF FLORIDA.

re

1. The Supreme Court will always reverse a judgment in a criminal case where it shall appear that the judge charged the jury upon the case but did not duce his charge to writing, and file it in the case, according to the 8th section of the Act of January 4, 1848.

2. The record stated that the prisoner was led into court by the Sheriff, "whereupon came a jury, &c., who being duly chosen, tried and sworn, after hearing the evidence and argument of counsel, and under charge of the court, retired to consult of their verdict," &c. Held that this language does not furnish evidence that the judge charged the jury within the meaning of the above act.

3. Remarks by the Judge to the jury touching their behavior on retiring to consult of their verdict, as that they shall not speak to any one or suffer any one to speak to them do not constitute a charge within the meaning of said

act.

Duggan vs. The State of Florida.-Opinion of Court.

4. The Circuit Judge must be presumed to have done his duty in the absence of proof to the contrary.

Appeal from Escambia Circuit Court.

This case was decided at Marianna.

The case is fully stated in the opinion of the court.

C. W. Jones for appellant.

The State not represented.

WALKER, J., delivered the opinion of the Court.

At the Fall Term 1860, of Escambia Circuit Court, the plaintiff in error was tried, convicted and sentenced for the murder of William Wallace.

The assignment of error in this court is, that "it does not appear from the record proceedings of this case in the court below, that the Judge filed the charge which he delivered to the jury."

This assignment would unquestionably be sufficient ground for reversal if supported by the record. The 8th section of "An Act to provide writs of error in criminal cases," approved January 4, 1848, read as follows:

"Sec. 8. Be it further enacted, That charges made by Judges to juries in all criminal cases, shall be reduced to writing and filed in the case, and shall be exclusively on points of law; and that any violation of this section shall be deemed and construed to be error from which a writ of error may be prayed as of right."

The language of this act is too plain for comment, and in every criminal case where it shall appear that a Judge has charged a jury either upon the law or facts, without reducing his charge to writing and filing it in the case, we should hold it to be error.