if fully organized. In this case the two or more persons who, it is alleged, promised the plaintiff to see him paid, bound no one but themselves. They had no authority to speak for any one else. In the absence of any such authority and of any satisfactory proof that the result of the plaintiff's labor and expenditure was accepted and enjoyed by the corporation, . . . . the court below should have instructed the jury that the defendant was not liable."

Where there is an express adoption by the corporation of the contract, amounting to a ratification thereof, no room remains for doubt as to its liability.

Bell's Gap R. Co. v. Christy, 79 Pa. St. 59; Titus et al. v. Cataivissa Railroad Co., 5 Phila. 172; Wood v. Whelon, 93 Ill. 153; Low v. Connecticut and Passumsive R. Co., 45 N. H. 370, S. C. 46 N. H. 284.

Some authorities go further, and hold that even in the absence of an express contract with the promoters the corporation adopting the benefit of a party's acts is liable to him on an implied assumpsit for services rendered. Law v. Conn. & Pass. R. Co. supra.

At least, if the services be after the granting of the charter and of such a kind as are necessary to enable the corporation to organize. Hall v. Vt. & Mass. R. R. Co., 28 Vt. 401.

And in such case the existence of a provision in the charter that certain expenses shall be paid does not preclude liability for further expenses other than those named. Law v. Connecticut & Pass. R. Co., 46 N. H. 284.

Some authoritites hold doctrines directly the contrary of those above set forth. In New York & New Haven R. R. Co. v. Ketchum, 27 Conn. 170; it is said that promoters cannot bind the company before incorporation thereof in any event.

In considering this case the court said: "The services for which it is claimed that the plaintiffs were liable to pay the defendant, were rendered at a time before the stock was taken up, in conformity to the charter, and before the company had a proper existence. Hence it is not easy to see how they could be rendered for or at the request of one company (or rather, perhaps, the first bona fide stockholders, for they must be looked at as the company) and if they were not so rendered, then how the company could be liable for them, upon any known principle of law. We are aware that it is no uncommon practice for corporations to assume and pay every preliminary and antecedent charge after the company has become organized, but we do not see how the company, if it should object, could be compelled to pay them, and in some cases it would be most inequitable to require it. Can a few persons combine for their own interest to get up a railroad, agree with one of their number to give him a large commission or bonus for every stockholder he can allure into the company, and privately make this commission or bonus a charge on the corporation when formed? This would be a breach of faith towards honest and unsuspecting stockholders who pay the charter price for their stock and expect to take it clear of all incumbrances."

These observations must, however, in view of the facts of the case be considered as mere dicta. The facts were as follows: A director of a railroad had prior to its incorporation performed valuable services in collecting subscriptions. On the organization of the road the company voted him a free pass for himself and his family, which was subsequently withdrawn. The question of the obligation of the corporation to him arose in an action against him for fares. The court pointed out clearly the fact that there was no evidence to show that defendant had performed the services in question on a footing of compensation or that the ticket was anything else than a gratuity, and the case might well have been decided on these grounds. The court, however, chose to submit the further considerationscited above.

It is evident that where the services preformed are purely voluntary or have been prompted by some self interest, such as an expected value, in the use of the parties' real estate by the formation of the company and construction of the road, he is entitled to no compensation. Hall v. Vt. & Mass. R. R. Co., 23 Vt. 401.

The presumption that the services have been voluntarily rendered is a very strong one. Rockford R. I., 7 St. L. R. R. Co. v. Sage, 65 Ill. 328. In this case the court said:

"For services and expenses before the organization of the company, which subsequently the company accepts and receives the benefits of, and promises to pay for, we will not say a party might not recover by virtue of such express promise, but we are disposed to deny the right of recovery for such services and expenses upon any implied promise resulting from the facts ... A right of recovery against a corporation for anything done before it had a proper existence, does not appear to rest on any very satisfactory legal principles. It appears more reasonable to hold any services performed or expenses incurred prior to the organization of a corporation to have been gratuitous, in view of the general good or private benefit expected to result from the object of the corporation. It seems unjust to stockholders who subscribe and pay for stock in a company, that their property should be subject to the incumbrance of such claims, and which they had no voice in creating."

STATE, EX RELATIONE THOMPSON,

V.

THE CHERAW AND CHESTER RAILROAD COMPANY.

(16 Shand. Reports, 524.)

The terms "stock" and "capital stock" considered, and held, that stock when used in reference to corporations, and in connection with the privilege of subscribing thereto, means capital stock.

An act of the legislature authorized the issue of bonds by a county "in subscription for preferred stock" of a railroad company, and the act provided that the county"shall receive from the company preferred stock to the amount of the said bonds, which preferred stock shall bear interest at the rate of seven per cent per annum." Held, that this preferred stock meant capital stock, different from other capital stock only in the preference given to it in the matter of dividends.

A certificate of stock tendered by the company to the county setting forth that the county was entitled to the stated amount, but impliedly declaring it not to be capital stock, was not sufficient; and there was no error in a writ of mandamus prescribing a form of certificate in substantial compliance with

the terms of the act.

The judges of the Courts of Common Pleas have power at chambers to issue writs of mandamus.

A demand by the county made upon the railroad company for certificates of preferred stock, although the demand did not specify the precise character of the certificates, was sufficiently definite to warrant this subsequent proceeding by mandamus.

The peremptory writ in mandamus must conform to the alternative writ, but such conformity existed in this case.

Before MACKEY, J., Chester, July, 1881.

This was a proceeding by mandamus on the petition of the State of South Carolina, ex relatione W. Banks Thompson, John O. Darby and Waties Pendergrass, as county commissioners in and for the county of Chester, against the Cheraw and Chester Railroad Company, and William Hardin, as president, and David Hemphill as secretary and treasurer of said railroad company. The opinion states the case.

Messrs. J. & J. Hemphill and J. H. Rion, for appellants.
Messrs. A. G. Brice and S. P. Hamilton, contra.

March 4, 1882. The opinion of the court was delivered by

SIMPSON, C. J.-Under an act entitled "An act to authorize and empower certain counties to issue bonds in subscription for preferred stock of the Cheraw and Chester Railroad Company," approved March 14, 1874, the county of Chester subscribed the sum of $75,000, and in accordance with the terms of said act, duly made, executed and delivered seven hundred and fifty bonds, of the par value of $100 each, in payment of said subscription. The fourth section of said act provides as follows: "On the completion of the said railroad in the county, the board of county commissioners shall receive from said company an amount of preferred stock of said company equal to the amount of the said bonds, which preferred stock shall bear interest at the rate of seven per cent per

annum.

This road had been completed for more than a year prior to this proceeding, which was commenced on May 13, 1881, by petition to Hon. T. J. Mackey, Circuit Judge, at chambers, praying that a writ of mandamus do issue to Hardin, the presi dent of the company, and Hemphill, the secretary, commanding them to execute and deliver certificates for fifteen hundred shares of preferred stock of said company to the petitioners, county commissioners, alleging a demand and refusal, previously made. Upon this petition an alternative writ was granted on May 13, 1881, requiring the respondents to make and execute a certificate or certificates of "preferred stock" in the Cheraw and Chester Railroad Company to the amount of $75,000, . . . and to deliver the same to the said county commissioners immediately upon the receipt of the writ, or that they appear before the Honorable Thomas J. Mackey, Judge of the Sixth Circuit, sitting at chambers, in and for the county of Chester, at the Court House, on the 3d day of June, A.D. 1881, to show cause why they refuse to do so.

On the first day of June thereafter an order was granted the petitioners for leave to amend the alternative writ issued on May 13, by inserting the words, "In proper form and manner a certificate or certificates for fifteen hundred shares (of the par value of fifty dollars a share) of preferred stock in the Cheraw and Chester

Railroad Company, bearing interest at seven per cent per annum," in place of the words "certificate or certificates of preferred stock," etc., and also to insert after the word "subscription," in the orignal writ, the words "being fifteen hundred shares of said stock." This amended writ was served on June 3, 1881, with leave on the part of respondents to make their return thereto within twenty days; and the hearing was fixed for the 30th day of June. To these writs respondents made return within the time, and while denying that any demand had ever been made upon them for fifteen hundred shares, at the par value of $50 a share, of preferred stock, and that no mandamus could lawfully issue from one of the judges of the Circuit Court, they tendered a certificate, which they stated the board of directors had authorized them to prepare, and further stating that they had no power to offer any other. The certificate tendered is as follows: "Cheraw and Chester Railroad Company. Certificate No. 1. $75,000. State of South Carolina. Preferred stock, seven per cent interest. These presents certify that the Board of County Commissioners of the county of Chester, having issued seven hundred and fifty bonds of one hundred dollars each, of date April 1, 1875, in pursuance of an act of the General Assembly of the aforesaid State, entitled 'An act to authorize and empower certain counties to issue bonds in subscription for preferred stock of the Cheraw and Chester Railroad Company,' approved March 14, 1874, are holders of sev enty-five thousand dollars of preferred stock of the Cheraw and Chester Railroad Company, which said stock bears interest at the rate of seven per centum per annum from the day of the completion of said railroad in said county, to wit, the 1st day of June, 1880, to be paid prior and in preference to any dividend upon the capital stock of the said company. Witness the hands of the president and treasurer, and the corporate seal. May 26th, A.D. 1881."

Judge Mackey held this certificate insufficient, as it failed to show the number of shares in the capital stock of the company which the county was entitled to, and leaving it doubtful whether it was intended as a certificate of indebtedness of the company to the county, or a certificate showing the number of shares that the county held in the capital stock of the company; and he issued a peremptory mandamus commanding the respondents without delay to deliver to the petitioners a certificate in the following form:

"This is to certify that the county of Chester is entitled to fifteen hundred shares in the capital stock of the Cheraw and Chester Railroad Company. This certificate of fifteen hundred shares of the capital stock of the Cheraw and Chester Railroad Company is preferred stock issued by virtue of the act of the General Assembly of the State of South Carolina, approved March

14th, 1874. Witness the hands of the president and treasurer, with the corporate seal."

From this peremptory mandamus the respondents to petition below have appealed on the following grounds:

1. Because the cause was heard and the judgment rendered at chambers.

2. Because there was no proof of any previous demand upon respondents for a certificate or certificates of fifteen hundred shares of the capital stock, or preferred stock, or preferred capital stock of said railroad company, but it was proved on the contrary that no such demand had ever been made.

3. Because the relators are not entitled to fifteen hundred shares of capital stock, or preferred stock, or preferred capital stock of the Cheraw and Chester Railroad Company.

4. Because the alternative writ of mandamus does not state sufficient facts upon which to base relators' claim to the relief demanded, nor does it set forth the particulars in which they have been wronged.

5. Because the peremptory writ of mandamus does not conform to the alternative.

6. Because the peremtory writ requires the respondents to execute and deliver a certificate in a particular form therein set forth, contrary to law.

7. Because respondents had already tendered to the relators, as county commissioners as aforesaid, a certificate for $75,000 of preferred stock of said railroad company in conformity with law.

The prominent questions involved in this appeal are whether the respondents, under the facts and law, are entitled to a certificate from appellants representing that they have shares in the capital stock of appellants' company? And, if so, whether the certificate tendered by appellants, or the one ordered by the court, is the proper certificate? This question must be determined upon the construction which shall be given to the act of the legislature above referred to, under which the county of Chester has become connected with this railroad.

The words in that act to be interpreted, and upon which the question depends, are "preferred stock." What was meant by these words is the question. The act authorized the counties to subscribe for "preferred stock" and the county commissioners to receive certificates of "preferred stock" for such subscription. Did the legislature intend by this that the county should have shares in the capital stock of the company, or that it should become simply a preferred creditor, or occupy some other relation not well defined?

The first rule in ascertaining the intent of an instrument, whether it be an act or any other paper, is to go to the meaning of the words. What then is the meaning of the term "stock?" Stock