Opinion. to pay, or how much he would be required to pay. The subscription, therefore, was conditional as to the times and amounts of payment, and consequently there was no fixed. obligation of the stockholder to pay, and no right of action against him, until an assessment and call made, either by the president and directors, or by the order of a court of competent jurisdiction. It is for the amount of assessment made that the right of action accrues, and not for the whole balance of the unpaid subscription, unless the whole amount be called for; and it is only from the time of assessment and call made that the statutes was in favor of the defendant." Citing a number of authorities; and among them, Scoville v. Thayer, 105 U. S., 143, and Sinpler v. Turnpike Road Company, 3 Penn. St., 413, in both of which the subject was very fully considered and the same doctrine maintained. See also Lane's Appeal, 105 Penn. St., 69–70, (in explanation and illustration of Scoville v. Thayer); Smith v. Bell, 107 Penn. St., 59-60, and Glenn v. Semple, 80 Ala., 380; Glenn v. Soule, 22 Fed. Rep., 417; Glenn v. Springs, 26 Fed. Rep., 494; Glenn v. Scott, 28 Fed. Rep., 804; The Great Western Telegraph Co. v. Gray, 14 N. W. R., 214. It is not pretended here that five years had elapsed, after the call made, before the present action was brought; but the claim is that the statute began to run at a period long anterior to the call made. The fact is, as already stated, that the unpaid subscriptions constituted a trust fund, upon the faith of which the debts of the company were contracted, and was primarily bound, as such, for the payment of the corporate debts; and by the very terms of the contract of subscription there was a continuing, though not unconditional, obligation to contribute to the capital stock upon call made, which call, when made, confers a right of action to the extent of the amount called for. As before stated, the right of the plaintiff, the defendant in error, to recover in the present suit depends upon the validity Opinion. and authoritative character of the decree of the chancery court of Richmond. After a painstaking investigation, we are clearly of the opinion that that decree is valid and binding in all respects. It was rendered by a court of competent jurisdiction, of the company's domicil, having before it all necessary and proper parties. It, therefore, absolutely concludes and binds the company and each and every one of its members, the stockholders, as to every question that was or could have been adjudicated under the pleadings and proofs in that cause. Such was held to be its effect in Glenn, trustee, v. Williams, supra, and in numerous other decisions, State and Federal, and the same effect will doubtless continue to be given to it in every jurisdiction in which it may be called in question. This is saying but little when we reflect that the constitution of the United States requires that full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State; and that the act of Congress providing for the mode of authenticating such acts, records and judicial proceedings, declares that, when authenticated as provided, "they shall have such faith and credit given to them in every court within the United States as they have by the law or usage in the courts of the State from which they are or shall be taken." We do not, however, intend to be understood as saying, or even intimating, that the decree of the chancery court authorizing and directing the trustee to sue for the call, could determine the kind, manner or form of action to be brought under the decree in other forums, but that it was certainly within the jurisdiction and powers of that court, as between the creditors secured by the deed of assignment, the company itself, composed of its stockholders and representing them, and the trustees in the deed; all parties before the court, with the subject matter in hand, to determine judicially that Glenn, the substituted trustee, was entitled to the money made due Opinion. by the call, and that payment thereof should be made to him, and that he be authorized to sue for the same. And further, that, in contemplation of law, the original membership obligation of payment to the president and directors upon call, was, in effect, changed and merged by the deed of trust and the decree into an agreed and adjudicated duty of payment to the substituted trustee upon the call made by the court, and upon the breach of that duty the right of action to the substituted trustee in his own name was complete. For while in speaking of actions on contract it is common to say that the action is founded upon the contract, yet, as has been well remarked, "an action on contract, though said to be brought on the contract, because a contract must exist as the basis of it, is, strictly speaking, an action on the breach of a contract; and in order to maintain the action, it is no less necessary that a contract should be broken, than that it should exist." Decey's Par. to Actions (ed. 1879), pp. 9, 10. And in Lindley on Partnerships and Companies (Am. ed.,) 467, it is said: "Every action presupposes some duty owing by some one to some one else, and a breach actual or contemplated of such duty. For such breach, the person to sue is the person to whom the duty is owing; and the person to be sued is the person in whom the duty resides." Here the duty of payment of the judicial call was owing to the substituted trustee, the breach of duty was to him, and he was, therefore, the authorized and proper person to sue for the amount made due by the call. This being so, there can be no good reason why the stockholders, the persons to be sued, should not be bound by the decree in this as in other respects, for this is the culminating point adjudicated. It follows, therefore, that the substituted trustee was properly invested with full power and authority to sue in his own name. The judgment of the corporation court of Norfolk is right, and the same must be affirmed. JUDGMENT AFFIRMED. INDEX. ACKNOWLEDGEMENT. (See Deeds.) ACT. Legislation-Title of Acts. (See Statutes-Constitutionality of Statutes.) ALIMONY. Decrees-Effect-Subsequent alteration.-When time at which alimony shall ALTERATION OF INSTRUMENTS. Bonds-Burden of explanation.-Where it appears that on the face of APPEAL. Dismissal-Effect.-An order dismissing an appeal for failure to print, Appellate Proceedings-Supersedeas bond.-Excluding the three days the |