subscribe, keeping the book about six months, he cannot release himself from his contract by cutting out his name and returning the book. And where one, having possession of an agreement to take shares in the capital stock of a corporation, after subscribing in good faith for shares of such stock induces others to subscribe on the faith of his subscription, and subsequently, without the knowledge of the other subscribers, alters the paper by reducing the number of shares, and delivers the instrument in that condition to the secretary, who is also a director, this will not affect the liability of one thus induced to subscribe, although at the time of such delivery the person making the alteration explains the same to the secretary, who makes no objection: Jewett v. Valley R'y, 34 Ohio St. 601. In Whittlesey v. Frantz, 74 N. Y. 456, it was held that where the defendant's subscription was made after another subscriber, and the subscription paper showed the name of the latter canceled by lines across it, and opposite it appeared the words, "By agree't, Mar. 5, "73," the alteration did not per se discharge the defendant. In Sodus Bay etc. R. R. v. Hamlin, 24 Hun, 390, a subscriber was held not released, where his signature was cut from a printed paper of subscription, and pasted on a facsimile.

If, also, a secret arrangement or agreement, oral or written, be made be tween the officers of the company and a subscriber, at or before the time of the subscription, that the subscriber shall be allowed the privilege of withdrawing, or that his liability shall in some way be limited, such an arrangement or agreement will not be sustained, and will constitute no defense to the liability of the subscriber, as it appears by the terms of his subscription, or to the liability of any other subscriber: Anderson v. Newcastle etc. R. R., 12 Ind. 376; S. C., 74 Am. Dec. 218; New Albany etc. R. R. v. Fields, 10 Ind. 187; Melvin v. Lamar Ins. Co., SO Ill. 446; S. C., 22 Am. Rep. 199; Jewell v. Rock River Paper Co., 101 Ill. 57; Chouteau Ins. Co. v. Floyd, 74 Mo. 286; Robinson v. Pittsburgh etc. R. R., 32 Pa. St. 334; S. C., 72 Am. Dec. 792; Swartwout v. Michigan etc. R. R., 24 Mich. 389; Walker v. Mobile etc. R. R., 34 Miss. 245; White Mountains R. R. v. Eastman, 34 N. H. 124; Connecticut etc. R. R. v. Bailey, 24 Vt. 465; S. C., 58 Am. Dec. 181; Upton v. Tribilcock, 91 U. S. 45. Such arrangements are a fraud upon the other subscribers; and if they are oral, the additional objection exists that to allow them to be proved would be to vary the terms of written contracts by parol evidence.

A subscription to corporate stock will not be invalidated by the irresponsibility of other subscribers for shares necessary to be subscribed before the organization of the corporation, if such other subscriptions were made and accepted by the company in good faith, the subscribers being apparently responsible: Penobscot etc. R. R. v. White, 41 Me. 512; S. C., 66 Am. Dec. 257; nor is it any defense to an action upon a subscription that stock had been awarded by the commissioners to persons whose names were not on the stock. book: Swartwout v. Michigan etc. R. R., 24 Mich. 389.

A subscriber will not be released because the managing agents of the corporation have violated its charter: 1 Morawetz on Private Corporations, secs. 115, 116; Hannibal etc. Plank Road Co. v. Menefee, 25 Mo. 547; Mississippi etc. R. R. v. Cross, 20 Ark. 443; Smith v. Tallassee etc. Plank Road Co., 30 Ala. 650; Merrill v. Gamble, 46 Iowa, 615; Merrill v. Beaver, Id. 646; Merrill v. Reaver, 50 Id. 404; Taggart v. Western Maryland R. R., 24 Md. 563, 596; Southern Life Ins. & T. Co. v. Lanier, 5 Fla. 110; S. C., 58 Am. Dec. 448; nor is it a defense to an action on his subscription that the affairs of the corporation have been unwisely managed: 1 Morawetz on Private Corporations, sec. 117; Hornaday v. Indiana etc. R'y, 9 Ind. 263; Illinois Grand Trunk R. R. v. Cook,

29 Пl. 237; Chetlain v. Republic Life Ins. Co., 86 Id. 220; Merrill v. Reaver, 50 Iowa, 404. And the misapplication of a check taken upon a subscription, by paying it away upon the private debt of one of the directors, will not vitiate it, if otherwise valid: Crocker v. Crane, 21 Wend. 211; S. C., 34 Am. Dec. 228. A stockholder, when sued for a call upon his subscription, will not be allowed to dispute the necessity of the call: Chouteau Ins. Co. v. Floyd, 74 Mo. 286; so the purpose to which installments on subscriptions are to be applied constitutes no condition to their payment: New Albany etc. R. R. v. Fields, 10 Ind. 187.

Illegality in the election of directors cannot be set up as a defense to an action upon a subscription: Johnson v. Crawfordsville etc. R. R., 11 Ind. 280; Eakright v. Logansport etc. R. R., 13 Id. 404.

The effect upon subscriptions of a subsequent change of the charter of a corporation is considered in the note to Commonwealth v. Cullen, 53 Am. Dec. 461; and see also note to Franklin Glass Co. v. Alexander, 9 Id. 100; Connecticut etc. R. R. v. Bailey, 58 Id. 181; Pacific R. R. v. Hughes, 64 Id. 265; Martin v. Pensacola etc. R. R., 73 Id. 713, and needs no further treatment here.

SUBSCRIPTIONS OBTAINED BY FRAUD. -- The general rule that contracts obtained by fraud may be avoided by the injured party, applies to subscriptions to corporate stock: Boone on Corporations; 1 Morawetz on Private Corporations, sec. 94; note to Franklin Glass Co. v. Alexander, 9 Am. Dec. 101; Grangers' Ins. Co. v. Turner, 61 Ga. 561; Hamilton v. Grangers' etc. Ins. Co., 67 Id. 145; West v. Crawfordsville etc. T. Co., 19 Ind. 242; Melendy v. Keen, 89 Ill. 395; Water Valley Mfg. Co. v. Seaman, 53 Miss. 655; Selma etc. R. R. v. Anderson, 51 Id. 829; Occidental Ins. Co. v. Ganzhorn, 2 Mo. App. 205; Vreeland v. New Jersey Stone Co., 29 N. J. Eq. 188, 191; Cunningham v. Edgefield etc. R. R., 2 Head, 23; compare Goodrich v. Reynolds, 31 Ill. 490; Schaeffer v. Missouri Home Ins. Co., 46 N. Y. 248, 250; and the remedy may be either affirmative or defensive; but a subscriber cannot recover back the amount paid by him, if there are claims of creditors of the corporation to be satisfied: Turner v. Grangers' etc. Ins. Co., 65 Ga. 649; S. C., 38 Am. Rep. 801; and see Hamilton v. Grangers' etc. Ins. Co., supra. The subscription, however, is simply void. able, and is valid until disaffirmed: Upton v. Englehart, 3 Dill. 496.

Fraudulent representations of an agent or officer of the company, whereby one is induced to subscribe, must have been made within the scope of his authority to be binding on the corporation: Buffalo etc. R. R. v. Dudley, 14 N. Y. 336; Custar v. Titusville Gas etc. Co., 63 Pa. St. 381; First Nat. Bank v. Hurford, 29 Iowa, 579; Rutz v. Esler etc. Mfg. Co., 3 Ill. App. 83; Rives v. Montgomery etc. Plank Road Co., 30 Ala. 92.

All the elements of a fraudulent representation must exist in order to avoid a subscription, as well as any other contract. Thus the representation must be the affirmation of some fact, and not the expression of an opinion, or the statement of matter of law: Clem v. Newcastle etc. R. R., 9 Ind. 488; S. C., 68 Am. Dec. 653; New Albany etc. R. R. v. Fiells, 10 Ind. 187; Eakright v. Logansport etc. R. R., 13 Id. 404; Hardy v. Merriweather, 14 Id. 203, 205; Bish v. Bradford, 17 Id. 490; Brownlee v. Ohio etc. R. R., 18 Id. 68, 72; Wight v. Shelby R. R., 16 B. Mon. 4; S. C., 63 Am. Dec. 522; Vicksbury etc. R. R. v. McKean, 12 La. Ann. 638; Hughes v. Antietam Mfg. Co., 34 Md. 316, 329; Walker v. Mobile etc. R. R., 34 Miss. 245; Selma etc. R. R. v. Anderson, 51 Id. 829; Oregon Central R. R. v. Scoggin, 3 Or. 161; Upton v. Tribilcock, 91 U. S. 45. It must, of course, be false in fact: Selma etc. R. R. v. Anderson, supra; it must have been with a fraudulent intent: Id.; Salem Milldam Corp. v. Ropes, 9 Pick. 187; S. C., 19 Am. Dec. 363; and it must have been

AM. DEC. VOL. LXXXI-26

relied upon by the subscriber, under such circumstances that he had a right te rely on it: Smith v. Tallassee etc. Plank Road Co., 30 Ala. 650; Selma etc. R. R ▼. Anderson, supra; Oregon Central R. R. v. Scoggin, supra: Andrews v. Ohio etc. R. R., 14 Ind. 169.

The right to avoid a subscription induced by fraud may, it should be noticed, be barred by laches: Upton v. Tribilcock, 91 U. S. 45; City Bank ▼. Bartlett, 71 Ga. 797.

STATUTE OF LIMITATIONS TO ACTIONS ON SUBSCRIPTIONS. — A right of action to recover installments of a subscription to corporate stock does not accrue, it is held, until a call is made, and the statute of limitations does not begin to run until that time: Gibson v. Columbia etc. T. Co., 18 Ohio St. 396. So it is held that stockholders in a bank cannot oppose the statute of limitations to the claim of creditors to have the stock paid up, it being a continuing trust and confidence to which the statute had no application: Payne v. Bul lard, 23 Miss. 88; S. C., 55 Am. Dec. 74. But in Pennsylvania the rule is, that although the statute does not begin to run against a subscription until a call has been made, yet the call must be made within six years, or the delay satisfactorily accounted for, or else a recovery on the subscription is barred: Pittsburgh etc. R. R. v. Byers, 32 Pa. St. 22; S. C., 72 Am. Dec. 770; McCully ▼. Pittsburgh etc. R. R., 32 Pa. St. 25; Pittsburgh etc. R. R. v. Graham, 36 Id 77; S. C., 2 Grant Cas. 259.

ESTOPPEL TO DENY CORPORATE EXISTENCE. A subscriber to corporate stock is estopped by his subscription from denying the existence of the corporation in an action against him on his subscription, or on a note or bond given for the same: Wood v. Coosa etc. R. R., 32 Ga. 273; Goodrich v. Rey nolds, 31 Ill. 490, 497; Anderson v. Newcastle etc. R. R., 12 Ind. 376; S. C., 74 Am. Dec. 218; Brownlee v. Ohio etc. R. R., 18 Ind. 68; Wight v. Shelby R. R., 16 B. Mon. 4; S. C., 63 Am. Dec. 522; Chester Glass Co. v. Dewey, 16 Mass. 94; S. C., 8 Am. Dec. 128; Busey v. Hooper, 35 Md. 15; S. C., 6 Am. Rep. 350; Swartwout v. Michigan etc. R. R., 24 Mich. 389; Parker v. Northern Central etc. R. R., 33 Id. 23; Yard v. Pacific Mut. Ins. Co., 10 N. J. Eq. 480; 8. C., 64 Am. Dec. 467; Dutchess Cotton Man. v. Davis, 14 Johns. 238; S. C., 7 Am. Dec. 459; Black River etc. R. R. v. Clarke, 25 N. Y. 208; Sodus Bay etc. R. R. v. Hamlin, 24 Hun, 390; Chubb v. Upton, 95 U. S. 665, 667; a fortiori if he takes an active interest in the affairs of the corporation: Danbury etc. R. R. v. Wilson, 22 Conn. 435; Phoenix Warehousing Co. v. Bauger, 67 N. Y. 294; Rutz v. Esler etc. Mfg. Co., 3 Ill. App. 83; and see New Hampshire Central R. R. v. Johnson, 30 N. H. 390; S. C., 64 Am. Dec. 300; but it is held that until the statutory requirements to organize a corporation have been complied with, a subscriber to the articles of association is not estopped to deny the existence of the corporation: Indianapolis Furnace etc. Co. v. Herkimer, 46 Ind. 142; Nelson v. Blakey, 47 Id. 38, 40; Reed v. Richmond etc. R. R., 50 Id 842; Rikhoff v. Brown's etc. Machine Co., 68 Id. 388. And if an organization is completed where there is no law, or an unconstitutional law authorizing an organization as a corporation, the doctrine of estoppel does not apply: Heas ton v. Cincinnati etc. R. R., 16 Id. 275; S. C., 79 Am. Dec. 430.

STATE EX REL. LEAL V. JONES.

[19 INDIANA, 856.]

ELECTION IS NOT VOID BY REASON OF OMISSION TO GIVE NOTICE THAT IT WAS TO TAKE PLACE.

OFFICE MAY BECOME VACANT BY OFFICER'S ABANDONMENT AND REMOVAL from the state, and this, without a judicial declaration of the vacancy. VACANT OFFICE MAY BE FILLED BY ELECTION AND APPOINTMENT BEFORE JUDICIAL DECLARATION OF VACANCY is procured, where it appears prima facie that acts or events have occurred subjecting the office to such a deolaration of vacancy; but if the person so selected or appointed, in attempting to take possession of the office, be resisted by the previous incumbent, he will be compelled to try the right in some mode prescribed by the law. PERSON ELECTED OR APPOINTED TO OFFICE BEFORE IT IS JUDICIALLY DE CLARED VACANT MAY TAKE POSSESSION, if he finds the office in fact vacant, and can take possession uncontested by the former incumbent; and as long as he remains in possession, he will be an officer de facto; and should the former incumbent never appear to contest his right, he will be regarded as having been an officer de facto and de jure; but if the former incumbent appear, the burden is upon him of proceeding to oust the then actual incumbent; and if in such proceeding it is made to appear that facts had occurred before the appointment or election justifying a judicial declaration of a vacancy, it will then be declared to have existed, and the election or appointment will be held to have been valid. MANDAMUS. The facts are stated in the opinion.

D. S. Major, for the appellant.

McDonald and Roache, for the appellee.

By Court, PERKINS, J. In July, 1861, Elias T. Crosby was auditor of Dearborn County, Indiana. On the seventeenth day of that month he abandoned the office and removed from the state.

At the annual election, in October following, William Leal became a candidate for the office of auditor of Dearborn County, and received 1,128 votes, being the highest number cast for a candidate for that office; but the clerk of the circuit court of the county, Samuel L. Jones, refused, within twenty days, and still refuses, to certify the vote for the candidates for the office of auditor, at said election, though there was no contest, to the secretary of state, whereby the relator was prevented from obtaining a commission for the office to which he claims to have been elected. This suit was instituted to obtain a mandate compelling the clerk to make and transmit the certificate.

A demurrer to the complaint was sustained, and the mandate refused, on the two grounds that no notice of the election

for an auditor of the county was given, and that there was no vacancy capable of being filled at the election.

It was the duty of the clerk to certify the votes to the secretary of state: 1 Gavin & Hord, p. 312, sec. 38; and this, without regard to the legality of the election. The duties of the clerk are ministerial, not judicial: Brower v. O'Brien, 2 Ind. 423; 1 Gavin & Hord, 306, note. Still, where it is manifest that the election held was void, a court will not compel a ministerial officer to perform a useless act: Beal v. Ray, 17 Ind. 554; S. C., 18 Id. 346. Is it so manifest in this case?

The election for auditor was not void by the omission to give notice that it was to take place: People v. Cowles, 13 N. Y. 350.

The election may have been valid, if the office had been vacant twenty days or upward, at the day of the election. We say it may have been, not that it necessarily was; circumstances may control the validity of any election.

Does the complaint, in this case, then, show prima facie that a vacancy existed in the office of county auditor of Dearborn County twenty days before the annual October election for 1861? A vacancy may so occur in an office as to require it to be filled at a succeeding annual election, by the acceptance by the incumbent of another incompatible office: Ind. Dig. 599; by the expiration of the current term of the incumbent: Biddle v. Willard, 10 Ind. 62; by the death of the incumbent: People v. Cowles, supra; see State v. Pidgeon, 8 Black f. 132; by the removal of the incumbent from the office by legal proceedings; by the voluntary removal of the incumbent, living, from the township, county, or state, as the case may be; and this without a judicial declaration of the vacancy. This is expressly ruled in Hedley v. Board of Commissioners, 4 Id. 116, as we understand that case. The constitution and statutes of the state require county officers to be residents, and to attend to their duties at the county seat.

We think the demurrer should have been overruled, and the defendant required to answer. An additional observation or two may be justified.

We think the following propositions are deducible from the judicial decisions of the supreme court of Indiana:~

1. Where it appears, prima facie, that acts or events have occurred subjecting an office to a judicial declaration of being vacant, the authority authorized to fill such vacancy, supposing the office to be vacant, may proceed, before procuring a