400 HIGH COURT OF CHANCERY.

The case relied upon by the complainant's counsel in 1
Cairn's Rep; 381, The Union Turnpike Company vs. Jenkins,
is entirely unlike this case in some of its most essential features.
In that case, which was an action of assumpsit brought by the
company against the defendant, to recover certain payments
called for pursuant to the act of incorporation, the court decid-
ed that the payment of ten dollars on each share, required to be
paid at the time of subscribing, was essential to the consumma-
tion of the contract; and that without such payment the court
was at a loss to see any consideration for the promise to pay
the remaining instalments. The subscription and payment
were both regarded as necessary to perfect the contract. That
unless the concurrence of both could be shown, the defendant
could not be regarded as entitled to the rights of a stockholder.
And the Chief Justice remarked, that if the speculation had
been an advantageous one, and before the first call of the pre-
sident and directors the stock had risen considerably in value,
they could have refused to consider the defendant as a stock-
holder, on account of his not having made the payment requir-
ed by the act, at the time of subscribing. This want of mutu-
ality, therefore, was the ground upon which the defendant was
held not responsible for the payments called in. This con-
stituted the want of consideration necessary to maintain the
action.

But this case is not at all like that. Here, the Elysville Com-
pany have received a certificate for the stock subscribed by its
president, and have executed a deed to the defendant, of prop-
erty, as the equivalent for, and in payment of, the stock. The
contract, therefore, is no longer executory, but is an executed
contract on both sides; and the attempt here is, not to resist
the performance of an executory agreement, upon the ground
that some act was not done, essential to give it legal validity;

but to cancel and abrogate a contract carried into full and com-
plete execution by both parties. Suppose in the case referred
to, the defendant had paid up the instalments as they were
called in, and had received a certificate for the stock; would it
have been possible for him, or the company, thereafter to repu-