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Abraham Lincoln to William Martin, 19 February 18511
Hon: William Martin:
The Legislature having got out of the way, I at last find time to attend to the business you left with me on behalf of the Alton and Sangamon Railroad Company2
As to your first question "Is there or is there not, a legal liability, raised in favor of the Company; against a subscriber under the 1st and 14 th sections of their charter, independent of any special contract, upon which a suit may be sustained for instalments called for under said 14th section?
Supposing you use the word "subscriber" as synonamous with "stockholder" I answer that in my opinion, such legal liability is raised, upon which such suit may be sustained–
The reason I note the word subscriber is, that I think a person might subscribe; and yet if he did not make the advance payment, he would not be fixed as a stockholder, and no suit for calls would lie against him–3
Second question– "If there be such legal liability, how far is it affected by that clause of Sec:[Section] 14 which declares that all instalments shall be paid as the Directors may deem fit "under the penalty of the forfeiture of all previous payments thereon"4 (meaning all previous payments made on each share of said stock)?
I find several decisions that this matter of forfeiture is a merely cumulative remedy given the Company; and that it does not at all affect the right of the Company to maintain a suit against a delinquent stock-holder– This I believe to be the law–
Third question– "To sustain an action on this legal liability (if any exists) what material facts should be stated in the declaration? and what will be legal and competent proof to sustain them?"
As to the declaration– Upon this subject I have examined
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the books, and reflected a good deal; and my conclusion is that nothing more than a common count is necessary– You will find a very apt precedent for such a count in 2. Chitty's Pleading 52–5 Notwithstanding this conclusion of mine, I have, through great caution, inserted two special counts in the declarations I have drawn– In the first of these, I state accurately, the creation of the Company by the Legislature, the opening of subscription books, the subscription and payment of five per cent by the defendant, the subsequent organization of the Company, and the calls for the instalments by the Directors– In the other, I state the written article in the book, as a conditional promise of the defendant, with averments of the performance of the conditions– I am bringing four suits; and in the two most important, for the special counts, I file complete copies of the books, signatures and all; in the other two I risk it with copies of the Article, without the names6 For the common counts, I filed accounts for the calls in all the cases–
As to the proof– To be entirely safe, we must prove
1. The creation of the Corporation
2. That the defendant is a Stockholder
3. That the Corporation has been organized
4. That the calls have been made
5. That due notice of the calls has been given–
The first will be proved by the production of the charter–
The second, by the production of the subscription book with the defendant's name, and proof of the genuineness of his signature, together with any competent parol7or written evidence, that he made the advance payment–
The third may be proved by the production of the book, containing the record entry of the organization; and it
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may also be proved by parol evidence that the Company is, in fact, doing business as an organized corporation–
The fourth can be proved by the production of the books in which the orders for the calls are recorded, together with proof, in person or by deposition, that the book produced is the book of the corporation– and it can be proved in no other way, unless it can be first proved, that no record entry of the calls was made; or being made, has been lost or destroyed– Knowing the inconvenience of this, in these cases, I have labored hard to find the law otherwise; but it is vain–8
The fifth may be proved by the common printer's or publisher's certificate, under our general statute of "Advertisements"–9
I am satisfied, from several adjudged cases, that a Stockholder is a competent witness for the company in these cases–10
Gillespie and Stuart have both told me that some law passed at this session making Stockholders competent witnesses, and also touching the evidence as to corporation records; but they can not tell the title of the act, and after considerable search, I have not found it–11
Send me the name of the keeper of the records (Secretary or Clerk–) in New-York.12
One of my men "caved in" & paid his instalments yesterday13
Yours trulyA. Lincoln
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5
SPRINGFIELD Ill.[Illinois]
FEB[February] 20
Hon: William MartinAltonIllinois–
[docketing]
A. Lincoln Feb 19– 185114
1Abraham Lincoln wrote and signed this letter, including the address on the last sheet, which was folded to create an envelope.
2The regular session of the Seventeenth Illinois General Assembly adjourned on February 17, 1851. The Alton and Sangamon Railroad Company had retained Lincoln & Herndon to collect balances due on shares of capital stock purchased by stockholders. The Illinois General Assembly chartered the railroad in February 1847 to construct and operate a railroad between Alton, Illinois, via New Berlin, and Springfield, Illinois. Section two of the company’s charter allowed the incorporators to issue $500,000 in stock at $100 per share, and section six required subscribers to purchase stock by paying $5 on each share subscribed at the time of subscribing and the balance in installments called for by a board of directors. The incorporators opened subscription for stock in May 1847. Many stock subscribers owned property near the proposed route. On January 29, 1851, however, the General Assembly altered the charter to allow the company to construct the road on a more direct route, bypassing the property of several stockholders. Believing that the change in route voided their subscription agreements, several investors refused to pay their remaining installments, and the company hired Lincoln & Herndon to collect the full subscriptions. Several of the delinquent subscribers were from Sangamon County, Illinois, and thirty-seven were from Madison County, Illinois. William Martin was among the incorporators.
Illinois House Journal. 1851. 17th G. A., 533; “An Act to Construct a Railroad from Alton, in Madison County, to Springfield, in Sangamon County,” 27 February 1847, Private and Special Laws of Illinois (1847), 144-49; Alton & Sangamon Railroad Stock Subscription Book; List of Stock Subscriptions, Document ID: 93972, Alton & Sangamon RR v. Barret, Martha L. Benner and Cullom Davis et al., eds., The Law Practice of Abraham Lincoln: Complete Documentary Edition, 2d edition (Springfield: Illinois Historic Preservation Agency, 2009), http://www.lawpracticeofabrahamlincoln.org/Details.aspx?case=138164; “An Act to Amend the Charter of the Alton and Sangamon Railroad Company,” 29 January 1851, Private Laws of Illinois (1851), 35. For full treatment of these cases, see Daniel W. Stowell et al., eds., The Papers of Abraham Lincoln: Legal Documents and Cases (Charlottesville: University of Virginia Press, 2008), 2:172-210.
3Martin’s correspondence relaying the questions that Lincoln answers has not been located. The first section of the charter listed the incorporators and the powers of the railroad, including the power “in law and in equity to sue and be sued.” The fourteenth section made it “lawful for the directors to require payment of the sums subscribed to the capital stock at such times, and in such proportions, and on such conditions as they shall deem fit.”
“An Act to Construct a Railroad from Alton, in Madison County, to Springfield, in Sangamon County,” 27 February 1847, 144, 147-48; Stock Subscription Book, 20 May 1847, Lincoln Collection, Abraham Lincoln Presidential Library, Springfield, IL.
4“An Act to Construct a Railroad from Alton, in Madison County, to Springfield, in Sangamon County,” 27 February 1847, 148.
5In a section on common counts in declarations in assumpsit, Joseph Chitty’s Treatise on Pleading provided language that an attorney could use in cases involving payments on corporate stock.
Joseph Chitty, A Treatise on Pleading, 9th American ed. (Springfield, MA: G. & C. Merriam, 1844), 2:52.
6Lincoln planned to bring suit on behalf of the railroad against James A. Barret, Joseph Klein, Sr., John M. Burkhardt, and Thomas J. Kirkpatrick. The Barret and Klein cases were the two most important, and Lincoln included the stock subscription book in these lawsuits. The Burkhardt and Kirkpatrick cases proved less important, and Lincoln did not provide the full stock subscription book in these cases.
Stock Subscription Book, Document ID: 4967, Alton & Sangamon RR v. Barret, Martha L. Benner and Cullom Davis et al., eds., The Law Practice of Abraham Lincoln: Complete Documentary Edition, http://www.lawpracticeofabrahamlincoln.org/Details.aspx?case=138164; Stock Subscription Book, Document ID: 4781, Alton & Sangamon RR v. Klein, Martha L. Benner and Cullom Davis et al., eds., The Law Practice of Abraham Lincoln: Complete Documentary Edition, http://www.lawpracticeofabrahamlincoln.org/Details.aspx?case=138127; Alton & Sangamon RR v. Burkhardt, Martha L. Benner and Cullom Davis et al., eds., The Law Practice of Abraham Lincoln: Complete Documentary Edition, http://www.lawpracticeofabrahamlincoln.org/Details.aspx?case=138122; Alton & Sangamon RR v. Kirkpatrick, Martha L. Benner and Cullom Davis et al., eds., The Law Practice of Abraham Lincoln: Complete Documentary Edition, http://www.lawpracticeofabrahamlincoln.org/Details.aspx?case=138126.
7Oral or verbal, as in parol testimony, parol pleading, and parol contracts.
John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States of America (Philadelphia: T. & J. W. Johnson, 1843), 2:262.
8Section fourteen of the charter required the directors to give notice of the payments required at least ninety days prior to date of payment, in newspapers in the locations where notice for opening the books for subscriptions had been published. St. Louis, Springfield, and Alton were the cities where the incorporators published notices for subscriptions.
“An Act to Construct a Railroad from Alton, in Madison County, to Springfield, in Sangamon County,” 27 February 1847, 148.
9Illinois law provided that “when any notice or advertisement shall be required by law, or the order of any court, to be published in any newspaper, the certificate of the printer or publisher, with a written or printed copy of such advertisement annexed, stating the number of papers in which the same shall have been published, and the dates of the first and last papers containing the same, shall be sufficient evidence of the publication therein set forth.”
“An Act concerning the Publication of Advertisements,” 28 December 1826, Revised Laws of Illinois (1833), 62-63.
10Martin was concerned about the competency of stockholders as witnesses because he was preparing to offer testimony himself, as an Alton & Sangamon Railroad stockholder, in the railroad’s case against one delinquent stockholder in Madison County.
Circuit Court Transcript, 11 December 1851, Ryder v. Alton & Sangamon Railroad, case file 2208, Illinois Supreme Court, Illinois State Archives, Springfield, IL; Daniel W. Stowell et al., eds., The Papers of Abraham Lincoln: Legal Documents and Cases, 2:177.
11The Seventeenth Illinois General Assembly passed no bill regarding the competency of stockholders as witnesses or the admissibility of corporate records as evidence.
General Laws of Illinois (1851).
12On February 21, Lincoln again wrote Martin requesting the name of either the clerk or secretary. Martin responded on the same day. Martin’s letter has not been located, and its contents remain unknown, but he probably provided Lincoln with the name of the secretary, Isaac Gibson, who Lincoln sought to depose in the Barret and Klein lawsuits.
Abraham Lincoln to William Martin; Notice to Take Deposition, Document ID: 4791, 4914, Alton & Sangamon RR v. Barret, Martha L. Benner and Cullom Davis et al., eds., The Law Practice of Abraham Lincoln: Complete Documentary Edition, http://www.lawpracticeofabrahamlincoln.org/Details.aspx?case=138164; Notice to Take Deposition, Interrogatories, Document ID: 4783, Alton & Sangamon RR v. Klein, Martha L. Benner and Cullom Davis et al., eds., The Law Practice of Abraham Lincoln: Complete Documentary Edition, http://www.lawpracticeofabrahamlincoln.org/Details.aspx?case=138127; Abraham Lincoln to Isaac Gibson; Isaac Gibson to Abraham Lincoln; Isaac Gibson to Abraham Lincoln.
13Kirkpatrick was the subscriber who paid his installments. One of the delinquent subscribers from Sangamon County, Kirkpatrick had purchased five shares of stock ($500), and the railroad brought suit in the Sangamon County Circuit Court to collect the balance due and $300 in damages. Kirkpatrick paid his installments, and the railroad dismissed the case. Lincoln continued to work on the remaining three lawsuits.
Between February and August 1851, Lincoln would write Martin an additional ten letters relating to these cases.
Abraham Lincoln to William Martin; Abraham Lincoln to William Martin; Abraham Lincoln to William Martin; Abraham Lincoln to William Martin; Abraham Lincoln to William Martin; Abraham Lincoln to William Martin; Abraham Lincoln to William Martin; Abraham Lincoln to William Martin; Abraham Lincoln to William Martin; Abraham Lincoln to William Martin; Declaration, Praecipe, Document ID: 4786; Order, Document ID: 5224, Alton & Sangamon RR v. Kirkpatrick, Martha L. Benner and Cullom Davis et al., eds., The Law Practice of Abraham Lincoln: Complete Documentary Edition, http://www.lawpracticeofabrahamlincoln.org/Details.aspx?case=138126. See also Daniel W. Stowell et al., eds., The Papers of Abraham Lincoln: Legal Documents and Cases, 2:177.
14Martin wrote this docketing.

Autograph Letter Signed, 4 page(s), Lincoln Collection, Abraham Lincoln Presidential Library and Museum (Springfield, IL).