charges all. A mere inconvenience to one is not enough. Modifications and improvements useful to the public and beneficial to the company, and in accordance with the understanding of the subscribers as to the real object to be effected, do not impair the contract of subscription: Everhart v. Railroad Co., 4 Casey 353.

GORDON, J.-The main principles involved in this case were examined and passed upon in the case of the Hanover Junction and Susquehanna Railroad Co. v. Haldeman, 1 Norris 36. There, with the same corporation and same subscription list, as in the case now under consideration, it was, by this court, determined that the defendant's subscription was properly treated as conditional, that the plaintiff had the power to bind itself to the performance of the stipulations contained in such subscription, and that a want of performance thereof by the company would release the subscriber. In like manner it was held in Caley v. the Philadelphia and Chester County Railroad Co., 30 P. F. Smith 363, that where the subscription paper set out the termini and route of the proposed improvement, a material variance from either would operate as a release of a subscriber. As a reason for such conclusion it was said: "If the above-stated doctrine be not correct, then has the defendant no remedy; for, as the directors, in changing the route of their road, are acting within the power conferred by the charter, he cannot prevent such change, though violative of the terms of the contract. He therefore occupies much the same position, in which, as we have shown, the general stock subscriber is placed when such change is made by virtue of an Act of Assembly." Following these authorities, and the conclusion necessarily results that the court erred in not permitting the defendant to show that the alteration made by the company in the original route of its road, was, as to him and his interests, a material variation. The written cortract to which he put his name, provided for the building of the extension of the Hanover Junction and Susquehanna Railroad, "According to the survey made by the Philadelphia and Reading Railroad Company," and this ran, it is said, within 500 feet of the defendant's mill. If then this was the contract of the parties, on what ground may the plaintiff recede from its part of the bargain and yet hold the defendant? Is it on the ground that a change of a few hundred feet from the original survey is immaterial, and, therefore, the defendant is not harmed? But this is the very point of the controversy, and who is to determine it? The defendant contends that this change was material; that it was the position of the original survey which induced his subscription, and that his interests are seriously compromised by the alteration. If, as was held in Everhardt v. the Railroad Co., 4 Casey 339, per Woodward J., an essential modification in the charter of a company, either as

to its objects or methods of execution, will release a general subscription, much more will the direct act of the company, destructive of the terms and conditions of its own contract, work such release. To all the subscribers to the stock of the corporation plaintiff but the defendant the alteration complained of might be indifferent, or even advantageous, hence they could not be heard to complain, whilst as to him, it might be very injurious: a material violation of his contract. To this conclusion the case of Miller v. Railroad Co., 6 Norris 95, has been opposed, but this case and the one in hand are as wide apart as the poles. In that case the defendant, Miller, set up a secret parol condition in order to defeat his subscription, but it was held that he could not be permitted so to do, on the ground that it would be unjust and a fraud upon his co.subscribers to permit him, on such grounds, to escape responsibility, and thus throw upon them an additional burthen. But the defendant, in the case in hand, is attempting to set up no secret parol arrangement, but a condition found in the subscription paper itself, and one to which all knew the company was to be held. We have, therefore, no hesitation in sustaining the 3d, 6th, 8th and 9th exceptions of the plaintiff in error. Not so the 7th exception. The defendant might have been asked whether or not the line of the proposed road, as found upon the ground running through his land, was an inducement for his subscription, but it partakes too much of the character of guess work for any one to undertake to say what he would have done under circumstances at the time unknown and unthought of. The plaintiff's first point ought to have been refused; the doctrine involved in it, as a general rule, is no doubt correct, but it is not applicable to the present case without material modification. The remaining exceptions are dismissed as containing nothing tending to convict the court of error. The judgment is reversed and a new venire ordered.

The above case raises the interesting legal question as to when a subscriber to the capital stock of a railroad company is relieved from liability on his subscription by reason of the failure of the company to comply with the terms of the contract of subscription. Many cases have been decided upon this point in the various States and in England. The aim of the present note is to give a synopsis of the law on the question.

It is well settled that any material variation on the part of the company from the original contract of subscription will release the subscriber from liability. Hartford, etc., R. R. Co. v. Croswell, 5 Hill, 383. This is in accordance with the general principles of jurisprudence. The subscriber must be presumed to have contracted with reference to the actual or projected state of affairs at the date of his subscription, and if material changes be made in that state of affairs he may most properly and justly say non in hoc

fœdera veni. Hence where after the date of the subscription the projected! corporation is divided into several and distinct concerns, the subscriber will be released. Indiana & E. Turnpike Co. v. Phillips, 2 Penn. 184; Marsh v. Fulton Co., 10 Wall. 676; Carlisle v. Terre Haute, etc., R. R. Co., 6 Ind. 316. Although not where there is a mere apportionment of the road into sections without impairing the unity of the projected corporation. Ross v. Chicago, B. & Q. R. R. Co., 77 Ill. 127.

The subscriber will also be relieved from liability where the projected enterprise is after the date of his subscription sold to another company. South Ga. & F. R. Co. v. Ayres, 56 Ga. 230. Or where a consolidation is effected with companies owning connecting or adjacent roads. Tuttle v. Mich. A. L. R. Co., 35 Mich. 247; Clearwater v. Meredith, 1 Wall. 25; N. J. Midland R'y Co. v. Strait, 6 Vroom, 322. But see Sprague v. Illinois River R. R. Co., 19 Ill. 174; Hanna v. Cinn. & Ft. Wayne R. R. Co., 20 Ind. 30.

The most frequent class of cases, however, in which a subscriber is relieved from liability is that of which the principal case forms an example, viz., where the contract of subscription provides that the road is to run through a certain locality. In this case, if the route be materially altered, the liability of the subscriber is at an end. Witter v. Miss. O. & R. R. R. Co., 20 Ark. 463; Manheim, P. &. L. Turnpike Co. v. Arnat, 31 Pa. St. 317; Sprague v. Illinois River R. R. Co., 19 Ill. 174; Buffalo & N. Y. City R. R. Co. v. Dudley, 14 N. Y. 336; Middlesex Turnpike Co. v. Locke, 8 Mass. 268; Hartford, etc., R. R. Co. v. Croswell, 5 Hill, 383; Md., etc., R. R. R. Co. v. Phillips, 2 Penn. 184; New Orleans, etc., R. R. Co. v. Harris, 27 Miss. 517; Hester v. Memphis, etc., R'y Co., 32 Miss. 378; Winter v. Muscogee R'y Co., 11 Ga. 438; Kenosha, etc., R. Co. v. Marsh, 17 Wisc. 13; Champion v. Memphis, etc., R. Co., 35 Miss. 392. But see Barret v. Alton & S. R. Co., 13 Ill. 504; Delaware R. Co. v. Tharp, 1 Houst. 149; Johnson v. Pensacola & G. R. Co. V. Preston, 35 Iowa, 115; Rice v. Rock Island & A. R. Co., 21 Ill. 93.

The reason of this rule is clear. The subscriber is generally induced to contract by the expectation that the railroad will run in the neighborhood of real estate, of which he is seised or in which he has an interest, and if it fails to do so, the chief motive for his subscription is at an end. Under such circumstances it would be in the highest degree unjust to hold him to his contract. It is not, however, every alteration in the plan or organization of the company that will serve to release the subscriber. Mere unimportant changes will have no effect upon his liability. London & B. R. Co. v. Wilson, 6 Bing. N. C. 135; Gray v. Monongahela Nav. Co., 10 Watts, 364; Sprigg v. Western Telegraph Co., 46 Md. 67; Clearwater v. Meredith, 1 Wallace, 25.

An extension of the time prescribed for beginning and ending the construction of the road will not therefore discharge him. Taggart v. Western Maryland R. R. Co., 24 Md. 563; nor an abbreviation of the time for notice of calls. Illinois River R. R. Co. v. Beers, 27 Ill. 185; nor a change in the regulations as to the payment of calls. Illinois River R. R. Co. v.. Zimmer.

20, Ill. 654; nor the extension of the corporate existence for a short period beyond that originally prescribed. Union Agricultural & S. Ass'n v. Neill, 31 Iowa, 95; nor the making of a change in the method of appointing directors. New Haven & D. R. Co. v. Chapman, 38 Com. 56; nor the transferring to the directors the power to increase the capital stock of the company, which power was at the time of the subscription reposed in the stockholders. Payson v. Stoever, 2 Dill. 427; East Tenn. & V. R. Co. v. Gammon, 58 Nud. 567; nor the conferring upon the corporation the power to issue preferred stock. Rutland R. R. Co. v. Thrall, 35 Vt. 536; Everhart v. Phila. W. & C. R. Co., 28 Pa. St. 339; or to execute a mortgage of its franchises and of the road. Jay v. Jackson and M. Plank Road Co., 11 Mich. 155.

A mere change in the denomination of the shares will not suffice to relieve a subscriber from liability. Sewall's case, L. R. 3 ch. 131; Feiling's case, L. R. 2 ch. 714; Kennebec, etc., R. R. Co. v. Waters, 34 Me. 369; nor a change in the name of the corporation. Buffalo, etc., R. R. Co. v. Dudley, 14 N. Y. 336; Milwaukee, etc., R. R. Co. v. Field, 12 Wisc. 340; nor a reduction in the length of the proposed road. Conn. & P. R. R. Co. v. Bailey, 24 Vt. 465; nor an extension thereof. Cross v. Peach Bottom R. R. Co., 1 Am. & Eng. R. R. Cas. 366; nor the conferring of additional powers and privileges upon the company, even though the liability of every stockholder may be thereby increased. Gray v. Monongahela Nav. Co., 2 W. & S. 156.

It has likewise been held that the conferring upon a railroad company of a power to construct a canal in lieu of a portion of its line will not relieve a subscriber to its stock from liability on his subscription. Midland

R'y Co. v. Sardon, 10 M. & W. 803. But this case seems, to say the least, doubtful.

Whether the passage of a legislative enactment after the date of the subscription authorizing an increase in the capital stock is sufficient to relieve a subscriber from liability seems doubtful. Some authorities seem to indicate that it is not. Payson v. Withers, 5 Biss. 276; Pullman v. Upton, 96 U. S. 329; Schenectady, etc., R. R. Co. v. Thatcher, 11 N. Y. 102; Buffalo, etc., R. R. Co. v. Dudley, 14 N. Y. 336. Others are clear that it is. Hughes v. Antietam Mfg. Co., 34 Md. 316; Marietta and C. R. Co. v. Elliott, 10 Ohio St. 57. If a subscriber does not expressly withdraw after the passage of the act increasing the capital, but continues to hold himself out to the world as a stockholder, he will be estopped on the insolvency of the corporation from denying his liability. Chubb v. Upton, 95 U. S. 665; but will not, according to some authorities, be so estopped in an action of assumpsit against him by the corporation for calls. Macedon, etc., Plank Road Co. v. Lapham, 18 Barb. 312; Middlesex T. R. Co. v. Lock, 8 Mass. 268; Stevens v. Rutland, etc., R. R. Co., 29 Vt. 545.

If the subscriber has either expressly or by implication given his assent to the change in the plans or organization of the corporation, he is not, of course, released from liability. Mourey v. Indianapolis & C. R. Co., 4 Biss. 78; Booker's case, 18 Ark. 338; Chetlam v. Republican L. I. Co., 86 Ill. 220;

Bedford R. Co. v. Bouser, 46 Pa. St. 29; Martin v. Pensacola & G. R. R. Co., 8 Fla. 370; May v. Memphis Branch R'y Co., 48 Ga. 109; Payson v. Stoever, 2 Dul. 427; Hayworth v. Junction R. R. Co., 13 Md. 348.

If at the time the subscription is made the charter is already in existence, and a power is conferred thereby to make the changes, which are afterwards effected, the subscriber will be presumed to have contracted with reference to the possibility of such changes, and hence will not be relieved from liability by the making of them. East Lincoln v. Davenport, 94 U. S. 801; Nugent v. Supervisers, 19 Wall. 241; Noyes v. Spaulding, 27 Vt. 420; Newhall v. Galena & C. U. R. R. Co., 14 Ill. 273; Ottawa, C. & F. R. V. R. Co. v. Black, 79 Ill. 262; Danbury & N. R. Co. v. Wilson, 22 Conn. 435; Burlington and M. R. Co. v. White, 5 Iowa, 409.

The same principle applies where the charter is not in existence, but the contract of subscription contains clauses which empower such changes. Cork and Youghall R. R. Co. v. Paterson, 16 C. B. 414; Nixon v. Brownlow, 2 H. & N. 455; Illinois River R. R. Co. v. Beers, 27 Ill. 185. Or where the provisions of some general law authorize them. In such case neither the increase of the capital stock (Pacific R. R. Co. v. Hughes, 22 Mo. 291), the extension of the railroad (Pacific R. R. Co. v. Renshaw, 18 Mo. 210), the consolidation with other companies (Scotland v. Thomas, 94 U. S. 682), nor other change whereby the liability of the stockholders is increased (Meadow Dam Co. v. Gray, 30 Me. 547) will discharge any of them from the obligation incurred by the contract of subscription.

Subscriptions to the stock of railroad companies are not unfrequently made upon the express condition that the railroad shall be so constructed as to pass through a certain locality. This condition, when embodied in the contract of subscription, is generally held to be a valid one; and a compliance therewith on the part of the company is therefore a necessary prerequisite to liability on the part of the subscriber. Mansfield, C. & L. M. R. Co. v. Brown, 26 Ohio St. 223; same v. Stout, 16 ib. 241; Parks v. Evansville, I. & C. S. L. R. Co., 23 Md. 567; Henderson & N. R. Co. v. Leavell, 16 B. Mons. 358; Caley v. Phila. & C. County R. R. Co., 80 Pa. St. 363; Burlington & M. R. Co. v. Boestler, 15 Iowa, 555; Merriel v. Reaver, 50 Iowa, 404; Bucksport & B. R. Co. v. Brewer, 67 Me. 295; Detroit, etc., R. R. Co. v. Stames, 38 Mich. 678; Spartanburg & V. R. Co. v. De Graffenreid, 12 Rich. 675.

In New York, however, such a condition is deemed void and as contrary to public policy, because it has a tendency to fix the location of the road so as to subserve private rather than public interests. Utica and S. R. Co. v. Brinckerhoff, 21 Wend. 139; Ft. Edw. & Ft. M. Plank Road Co. v. Payne, 15 N. Y, 483. And in Pennsylvania, though such a condition will be deemed valid if inserted in a contract of subscription made with the company after the granting of its charter, it will be deemed void if inserted in a contract with commissioners to collect subscriptions entered into prior to the obtaining of the charter.